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CLD-010-16
Clarinsoton Jerk's Report If this information is required in an alternate accessible format, please contact the Accessibility Coordinator at 905-623-3379 ext. 2131. Report To: General Government Committee Date of Meeting: February 16, 2016 Report Number: CLD-010-16 Resolution: � ��® File Number: By-law Number: Report Subject: Integrity Commissioner Recommendations: 1. That Report CLD-010-16 be received for information. Municipality of Clarington Report CLD-010-16 Page 2 Report Overview This report provides background information regarding Clarington's past position on an Integrity Commissioner as well as it details steps required to implement the appointment of an Integrity Commissioner. 1 . Background 1 .1 . General At the January 25, 2016 General Government Committee meeting, the Committee passed the following Resolution #GG-048-16: "That the Communication Item 9.1 from Debi A. Wilcox, Regional Clerk/Director of Legislative Services, Regional Municipality of Durham regarding an Integrity Commissioner and Code of Conduct: Bill 8— Public and MPP Accountability and Transparency Act, 2014, be referred to Staff to prepare a report for the February 16, 2016 General Government Committee meeting, regarding the possibility of appointing an Integrity Commissioner." Attachment 1 is the above referenced Communication Item. 1 .2. The Integrity Commissioner and the Municipal Act, 2001 When the Municipal Act, 2001 (the Act) was amended in 2006 (Bill 130), it introduced enhanced accountability powers for municipalities, including the authority to establish codes of conduct and to appoint accountability officers such as an Integrity Commissioner. Subsection 223.3 (1) of the Act is as follows: "Without limiting sections 9, 10 and 11, those sections authorize the municipality to appoint an Integrity Commissioner who reports to council and who is responsible for performing in an independent manner the functions assigned by the municipality with respect to, (a) the application of the code of conduct for members of council and the code of conduct for members of local boards or of either of them; Municipality of Clarington Report CLD-010-16 Page 3 and (b) the application of any procedures, rules and policies of the municipality and local boards governing the ethical behaviour of members of council and of local boards or of either of them; or (c) both of clauses (a) and (b)." 1 .3. Scope of Responsibility of an Integrity Commissioner The scope of responsibility of an Integrity Commissioner extends only to the application of the Code of Conduct as it pertains to Members of Council and members of local boards, not staff, administration nor is it applicable to other types of complaints. Additionally, the scope would not extend to closed meeting investigations as the Municipality of Clarington has already contracted for a Closed Meeting Investigator. As noted in Report CAO-005-13, "any complaint against the Council as a whole will not be under the purview of an Integrity Commissioner." 1 .4. Clarington's Historical Position on an Integrity Commissioner In 2007, Council considered Report CLD-042-07, which detailed the various options for ensuring accountability and transparency; which included the appointment of accountability officers (including an Integrity Commissioner). At that time, Council did not proceed to make any such appointments and approved the following Resolution #GPA-679-07: "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." In November, 2009, Council considered Report CAO-010-09 and subsequently passed By-law 2009-163 establishing a Code of Conduct for Members of Council. Municipality of Clarington Report CLD-010-16 Page 4 On June 17, 2013, Council considered the recommendations of the Addendum Report CAO-005-13, pertaining to the appointment of an Integrity Commissioner, did not adopt them, but instead passed the following resolution: "That a review of the code of conduct be undertaken to address issues of investigation and enforcement of the code of conduct." In response to the resolution above, Staff brought forward Report LGL-007-13 (Attachment 2), which discussed, at length, the various sections of Clarington's Code of Conduct. At the September 9, 2013 General Purpose and Administration Committee meeting, the Committee referred the matter back to Staff for a further report on what portions of the Model Code of Conduct were already covered by the Municipality of Clarington's Code of Conduct. This resulted in Report LGL-010-13 (Attachment 3) and amendments to the Code of Conduct By-law 2009-163, incorporating "Gifts and Benefits" and "No Improper Use of Influence" sections (Attachment 4 is the Consolidated By-law 2009-163). 1 .5. Region of Durham's RFP On December 16, 2015, Regional Council considered Report 2015-A-40 and passed the following resolution: "A) That Regional Council receive for information the findings of Regional staff regarding the merits and feasibility of establishing of a Code of Conduct for Regional Council; B) That Regional Council approve the development of a Council Code of Conduct, using the draft Code of Conduct, as amended, with Complaint Procedure attached as Schedule "A" as a framework for discussion; C) That Regional Council approve the concept of appointing an Integrity Commissioner to assist in the administration of a Code of Conduct for Regional Council and conduct inquiries; D) Should Regional Council endorse the concept of a Council Code of Conduct, and that it be administered by an Integrity Commissioner, that Regional Council authorize: i) Region of Durham staff to issue a Request For Proposals (RFP) seeking proposals for the services of an Integrity Commissioner, subject to financing at the discretion of the Region's Finance Department and completing Recommendation D) ii); Municipality of Clarington Report CLD-010-16 Page 5 ii) That prior to implementing Recommendation D) i) that Regional staff be directed to send copies of Repo rt.#201 5-A-40 and the Regional Council direction to all local municipalities within the Region of Durham and request that the local municipalities report back to Regional staff within 30 days from receipt of Repo rt#201 5-A-40 as to whether they would like to participate and partner with the Region of Durham in the proposed RFP as described in Recommendation D) i); and iii) That upon completion of the RFP, Regional staff report back in 2016 with a final report and recommendation establishing an Integrity Commissioner along with a recommendation for the recommended proponent pursuant to the RFP; and E) That upon completion of Recommendation D) iii), Regional staff report back with a final draft of the Code of Conduct for Regional Council for final approval and implementation." After the Region awards the contract for service and notifies Durham municipalities, Clarington could then take the appropriate steps to appoint a Clarington Integrity Commissioner. 2. Changes to Clarington's Previous Position As noted in Report LGL-007-13, if Council chooses to appoint an Integrity Commissioner, several things need to be considered, specifically: • What specific conduct should be prohibited? • What investigative powers and responsibilities should the Integrity Commissioner have? • How should complaints be processed? • What sanctions should be imposed if there is a violation of the Code of Conduct? In reviewing the history of Clarington's position, Staff believe that it is not necessary to rescind or reconsider any resolutions should Council choose to appoint an Integrity Commissioner. The strongest resolution was to "not proceed with appointment of an Integrity Commissioner, Ombudsman, or Auditor General, at this time". By adding the words "at this time", it left future Council's open to reconsider the matter without the need to rescind. Municipality of Clarington Report CLD-010-16 Page 6 3. Impact of Appointing an Integrity Commissioner on Clarington's Code of Conduct 3.1 . General Should Council choose to appoint an Integrity Commissioner, the current Code of Conduct would require changes to grant the authority for an Integrity Commissioner to investigate complaints. A Code of Conduct Complaint Procedure (similar to the Region of Durham's), would also need to be developed. 3.2. Enforcement As previously stated in Report LGL-007-13, "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 statute, the investigation and enforcement provisions of the applicable statute will govern." Should Council choose to appoint an Integrity Commissioner, it is recommended that Council amend the Code of Conduct to state that the Integrity Commissioner will have investigating powers. 3.3. Sanctions Although the Subsection 223.2(2) of the Act explicitly states that "a by-law cannot provide that a member who contravenes a code of conduct is guilty of an offence", the matter of sanctions should be addressed. The current code of conduct does not contain any penalties or sanctions. Subsection 223.4 (5) of the Act.- "The ct:"The municipality may impose either of the following penalties on a member of council or of a local board if the Commissioner reports to the municipality that, in his or her opinion, the member has contravened the code of conduct: 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 of the local board, as the case may be, for a period of up to 90 days." The courts have upheld "remedial measures" provided that they do not amount to "penalties". The "Model Form of Code of Conduct for Members of Council" also contains other types of sanctions which other municipalities may have used. Municipality of Clarington Report CLD-010-16 Page 7 4. Financial / Budget Funding At this time, the fees associated with the appointment of an Integrity Commissioner is unknown for two reasons. First, the Regional RFP process has not yet been completed, and second, the number of anticipated complaints which would be investigated by an Integrity Commissioner is unknown. Based on information obtained in 2013, the estimated hourly rate of such an individual would be $250 to $500. The number of hours varies. In 2011, another municipality paid $8000 for an investigation. The Region of Durham has indicated a retainer of$15,000 to $30,000 annually. Therefore, Staff recommends that, should Council proceed, any costs that may be incurred in 2016 be funded though the unclassified administration section, with appropriate budget amounts established in future years based on the usage of the Integrity Commissioner as experience is developed. 5. Concurrence This report has been reviewed by Andrew Allison, Municipal Solicitor, Marie Marano, Director of Corporate Services, and Nancy Taylor, Director of Finance, who concur with the recommendation. 6. Conclusion In response to Council's request for details of the appointment of an Integrity Commissioner, the foregoing has referenced several Reports which discussed the merits and implications of such an opportunity. As well, the foregoing detailed the legislative authority and scope of responsibility of an Integrity Commissioner and highlighted the necessary amendments to Clarington's Code of Conduct. While Staff is not recommending to appoint an Integrity Commissioner, if an Integrity Commissioner is to be appointed, Staff recommend that Council authorize staff to work with the Region of Durham in their RFP Process, and to report back to council with: a) A revised Code of Conduct b) A Code of Conduct Complaint Procedure c) A recommendation respecting the most appropriate means of appointing an Integrity Commissioner for Clarington, which would include a financial analysis. Municipality of Clarington Report CLD-010-16 Page 8 7. Strategic Plan Application Not applicable. Submitted by: Reviewed Y. Anntal &eentree Franklin Wu, Munici Clerk Chief Administrative Officer Staff Contact: Anne Greentree, Municipal Clerk, 905-623-3379 ext. 2102 or agreentree@clarington.net Attachments: Attachment 1 - Debi A. Wilcox, Regional Clerk/Director of Legislative Services, Regional Municipality of Durham regarding an Integrity Commissioner and Code of Conduct: Bill 8– Public and MPP Accountability and Transparency Act, 2014. Attachment 2 – Report LGL-007-13, Code of Conduct— Investigation and Enforcement Attachment 3 – Report LGL-010-13, Code of Conduct Attachment 4 - Consolidated By-law 2009-163, Clarington's current Code of Conduct Interested Parties: D. Wilcox, Regional Clerk/Director of Legislative Services, Regional Municipality of Durham D. Shields, City Clerk, City of Pickering M. de Rond, Director, Legislative & Information Services, Town of Ajax C. Harris, Clerk, Town of Whitby S. Kranc, City Clerk, City of Oshawa N. Wellsbury, Municipal Clerk, Township of Scugog D. Leroux, Director of Legislative Services/Clerk, Township of Uxbridge T. Gettinby, Chief Administrative Officer & Municipal Clerk, Township of Brock CAG/jeg Attachment 1 to Report CLD-010-16 E)rKS T IIB December 18, 2015 REVIE'NED BY De Rond, Clerk C] COUNCIL Tow Ajax COP'( 65 Harw'o d Avenue South 0 MAYN 0 MEMBER' 0 101MCIE01111V Ajax ON OFCOUNC;l 0 CONIIMUNIi( 0 CORPORAF SERV!US SERVICES 0 ENGJNEF.qt1f, RE: Integrity Commissioner and Code of Cond4CtSEBjJJ 8\\—A - IC The Regional Sector and MPP Accountability and Trans#, E;020U -, Municipality (2016-A-40) Our File: LOO-1696) of Durham JU UIIILH Corporate Services Please be advised the Finance & Administration Co mittee;Lof(,REe1gLo_RqI C10, Department- Council considered the above matter and at a meeting held on ecem1er Legislative Services 16, 2015, Council adopted the following recommendations of the 605 ROSSL-AND RD.E. Committee: PO BOX 623 WHITBY ON Ll N 6A3 CANADA "A) That Regional Council receive for information the findings of 905-668-7711 Regional staff regarding the merits and feasibility of establishing of 1-800-372-1102 a Code of Conduct for Regional Council; Fax:905-668-9963 13) That Regional Council approve the development of a Council Code www.durham.ca of Conduct, using the draft Code of Conduct, as amended, with Matthew L.Gaskell Complaint Procedure attached as Schedule "A" as a framework for Commissioner of discussion; Corporate Services C) That Regional Council approve the concept of appointing an Integrity Commissioner to assist in the administration of a Code of Conduct for Regional Council and conduct inquiries; D) Should Regional Council endorse the concept of a Council Code of Conduct, and that it be administered by an Integrity Commissioner, that Regional Council authorize: i) Region of Durham staff to issue a Request For Proposals (RFP) seeking proposals for the services of an Integrity Commissioner, subject to financing at the discretion of the Region's Finance Department and completing Recommendation D) ii); ii) That prior to implementing Recommendation D) i) that Regional staff be directed to send copies of Report#2015-A- 40 and the Regional Council direction to all local municipalities within the Region of Durham and request that the local municipalities report back to Regional staff within 30 days from receipt of Report#2015-A-40 as to whether they would like to participate and partner with the Region of Durham in the proposed RFP as described in Recommendation D) i); and "SeNige,-a lence fo f;p br am,7 M, t i e S _Oni If this information is required in an accessible format, please contact the Accessibility Co-ordinator at 1-800-372-1102 ext. 2009. iii) That upon completion of the RFP, Regional staff report back in 2016 with a final report and recommendation establishing an Integrity Commissioner along with a recommendation for the recommended proponent pursuant to the RFP; and E) That upon completion of Recommendation D) iii), Regional staff report back with a final draft of the Code of Conduct for Regional Council for final approval and implementation." The draft code attached as Schedule A to the report was amended to reflect the following: • That Section 2.10) regarding a lobbyist registrar be referred back to staff to give further consideration and make recommendations as to the necessity and suggested method of implementation; and • That Section 7.2 (b) be amended by adding the words `or gender identification" after the words "sexual orientation". As directed, attached is a copy of Report #2015-A-40 of the Commissioner of Finance. Please note that during discussion of Report#2015-A-40 at the Finance & Administration Committee meeting, it was indicated that there was flexibility on the 30 day response due to the holiday season and area municipality Council meeting schedule. 1 D. Wilcox, Regional Clerk/ Director of Legislative Services DW/Img Attach. c: T. Gettinby, CAO/Clerk, Township of Brock A. Greentree, Clerk, Municipality of Clarinaton S. Kranc, Clerk, City of Oshawa D. Shields, Clerk, City of Pickering K. Coates, Interim Clerk, Township of Scugog D. Leroux, Clerk, Township of Uxbridge C. Harris, Clerk, Town of Whitby M. Gaskell, Commissioner of Corporate Services i i The Regional Municipality of Durham Report To: Finance and Administration Committee From: Matthew L. Gaskell, Commissioner of Corporate Services Report: #2015-A-40 Date: December 8, 2015 Subject: Integrity Commissioner and Code of Conduct Bill 8 -Public Sector and MPP Accountability and Transparency Act, 2014 Recommendations: THAT the Finance &Administration Committee recommends to Regional Council that they adopt the following recommendations with respect to a Code of Conduct: A) That Regional Council receive for information the findings of Regional staff regarding the merits and feasibility of establishing of a Code of Conduct for Regional Council; B) That Regional Council approve the development of a Council Code of Conduct, using the draft Code of Conduct with Complaint Procedure attached as Schedule"A" as a framework for discussion; C) That Regional Council approve the concept of appointing an Integrity Commissioner to assist in the administration of a Code of Conduct for Regional Council and conduct inquiries; D) Should Regional Council endorse the concept of a Council Code of Conduct, and that it be administered by an Integrity Commissioner, that Regional Council authorize: (a) Region of Durham staff to issue a Request For Proposals (RFP) seeking proposals for the services of an Integrity Commissioner, subject to financing at the discretion of the Region's Finance Department and completing Recommendation 4(b); (b) That prior to implementing Recommendation 4(a)that Regional staff be directed to send copies of this report and the Regional Council direction to all local municipalities within the Region of Durham and request that the local municipalities report back to Regional staff within 30 days from receipt of this 12 Page 2 of 22 i report as to whether they would like to participate and partner with the Region of Durham in the proposed RFP as described in Recommendation 4(a); and (c) That upon completion of the RFP, Regional staff report back in 2016 with a final report and recommendation establishing an Integrity Commissioner along with a recommendation for the recommended proponent pursuant to the RFP; and E) That upon completion of Recommendation 4(c), Regional staff report back with a final draft of the Code of Conduct for Regional Council for final approval and implementation. Report: 1.1 Purpose This report is in response to Council direction at the June 20, 2015 meeting, to provide an update with respect to Bill 8, Public Sector and MPP Accountability and Transparency Act, 2014("Bill 8")which includes amendments to the Ombudsman Act, Municipal Freedom of information and Protection of Privacy Act("MFIPPA"), and the s Excellent Care for Ali Act, 2090. Regional staff initially reported to Regional Council on Bill 8 in Commissioner's Report 2015-A-26, dated June 24, 2015. I Staff were then directed to investigate and report back to Council on: "the feasibility of appointing a municipal ombudsman to conduct investigations with respect to administrative acts of the Region, including options for appointment jointly with other municipalities"and "the establishment of a code of conduct for Regional Council and the appointment of an integrity commissioner to administer the code of conduct and conduct inquiries- The nquiriesThe purpose of this report is to report back on the establishment of a code of conduct for Regional Council and the appointment of an Integrity Commissioner. A separate report speaks to the feasibility of appointing a Municipal Ombudsman. 1.2 Background The Municipal Statute Law Amendment Act, 2006 amended the Municipal Act, 2001, effective January 1, 2007, to add a new Fart entitled Accountability and Transparency. The provisions of that Part authorized municipal councils to establish a code of conduct for members of both the council and local boards. Municipal councils were also empowered (in the case of Toronto, required)to appoint an integrity commissioner who would report to council and be responsible for 13 Page 3 of 22 I performing, in an independent manner, the functions assigned by the municipality with respect to the application of a code of conduct. The role of the municipal integrity commissioner had its genesis in the 2005 report of Madam Justice Bellamy in the Toronto Computer Leasing Inquiry. Justice Bellamy's recommendations related to Ethics, included many suggestions for the improvement of the City's code of conduct for councillors. These suggestions recommended the appointment of an integrity commissioner. The amendments to the Municipal Act, 2001 implemented by Municipal Statute Law Amendment Act, 2006, demonstrated the Province's expectation for greater openness, transparency and accountability in local government. The subsequent provisions-of Bill 8, as described herein, move further to implement the Province's expectation that municipal governments will act upon the accountability and transparency provisions first enacted in 2006 by mandating the oversight of the Provincial Ombudsman. The recommendations contained herein, as they relate specifically to establishing a Code of Conduct and,appointing an Integrity Commissioner have been made in order to respond to the Provinces'expectations towards enhanced accountability and transparency in local government, and the public policy trend towards greater accountability for governments of all levels. 1.3 Code of Conductlintegrity Commissioner and Regional Staff Research and Investigations Over the summer, Regional staff conducted investigations and research on the merits and feasibility of the Region of Durham establishing a Code of Conduct for Regional Council that would be enforced by a proposed Integrity Commissioner. Regional staff also investigated the role of an Integrity Commissioner and consulted with the Clerks of those area municipalities who have established Codes of Conduct for their respective Councils. 1.4 Codes of Conduct and Consultation with Other Municipalities The adoption of Codes of Conduct in the municipal sector is becoming common practice and has not been limited to lower tier municipalities. The Regions of Halton, Niagara, and Peel, have adopted Council Codes of conduct. The Region of Waterloo is working to develop a Code of Conduct. The single tier cities of Toronto, Ottawa, Hamilton, Kingston, and Sudbury all have similarly adopted codes of conduct by their councils. At present, 7 of the 8 area municipalities in Durham Region have adopted Council Codes of Conduct. I 14 i i i Page 4 of 22 The feedback provided by the Clerks of those municipalities was that the Code of Conduct was a positive element within their governance structure to promote and enhance transparency and accountability. The types of issues that Codes of Conduct address are intended to achieve transparent and accountable government and the exercise of the duties of a Member of Council in such a way as to ensure public confidence with the highest levels of ethical conduct and behaviour. Codes of Conduct address principles of ethics and integrity which are at the core of public confidence in government and in the political process. Elected officials are expected to perform their duties in office and arrange their private affairs in a manner that promotes public confidence, avoids the improper use of influence of their office and conflicts of interests, both apparent and real,and signals the need to uphold both the letter and the spirit of the law including policies adopted by Council. Councillor conduct is already subject to a variety of existing statutes and policies including the Criminal Code of Canada and the Ontario Human Rights Code, as well as the following: A) Municipal Act, 2001 B) Municipal Conflict of interest Act C) Municipal Freedom of Information and Protection of Privacy Act D) Municipal Elections Act, 1996 E) Occupational Health and Safety Act F) Region of Durham Policies, By-laws It is incumbent upon Members of Council to be aware of, and understand the statutory obligations imposed upon Council as a whole, as well as on Members of Council individually. A Code of Conduct is supplementary to existing legislation and policies and is meant to be considered, in whole,with existing laws. Codes of Conduct also allow Members of Council to have a common basis and understanding for acceptable conduct extending beyond the legislative framework already governing the conduct of Members of Council. I Codes of Conduct are a value-based reference intended to encourage the highest standards of ethical behaviour to uphold the public trust,the integrity of governance and Region's reputation. The principles identified and addressed in Codes of Conduct in general are those that have been recognized as being.significant in the performance of political office. Over the summer,the Region's solicitors in consultation with John Mascarin completed a draft Code of Conduct which is attached as Schedule"A"to this report to be received 15 i i i i I I Page 5 of 22 for information. The principles covered in the attached draft Code of Conduct are typical of those of most municipalities that have adopted them including the lower tiers. Typically it was found they all follow the same template covering generally the same topics such as gifts, conduct with staff, conduct in meetings, handling confidential information etc. The draft Code of Conduct also includes a proposed Complaint Procedure for which input was sought from John Mascarin. 1.5 Integrity Commissioner and the Code of Conduct It is the consensus of most experts that it is important for municipalities to have an independent entity to enforce a Council Code of Conduct, and the Integrity Commissioner model has worked well in numerous jurisdictions. As noted above, 7 of the 8 local municipalities in Durham Region have established Codes of Conduct. The majority that are enforced by Integrity Commissioners either permanently appointed or who are retained on a case by case basis. It has also been noted that the role of Integrity Commissioners in other jurisdictions has typically involved review of, and refinement to, Codes of Conduct and the process and procedures related to a Code. For instance, it has been observed historically that Toronto's Integrity Commissioner has issued several reports in addition to annual reports, which serve to refine and develop new procedures and protocols around a Code of Conduct. Therefore the Code of Conduct is viewed as an ever evolving document with amendments being recommended as a response to ever changing issues in municipal law and ethics. j In the event that Regional Council endorses the principle of a Council Code of Conduct, then Regional staff recommend the establishment and appointment of an Integrity Commissionerrp for to the approval of a finalized Code of Conduct to Regional Council. 1.6 Integrity Commissioner,their Role, and Duties Section 223.3 of the Municipal Act, 2009 outlines the legislated role of an Integrity Commissioner. It identifies that the role of an Integrity Commissioner is to perform in an independent manner those functions assigned by a municipality with respect to: "(a) the application of the code of conduct for members of council and the code of conduct for members of local boards or of either of them, (b) the application of any procedures, rules and policies of the municipality and local boards governing the ethical behavior of members of council and of local boards or of either of them,or (c) both of clauses (a) and(b)." 16 i i I Page 6 of 22 I Under the Municipal Act, 2001, Council has the authority to assign duties and functions to an Integrity Commissioner. Duties may typically involve, but not necessarily be limited to the following: A) Providing advice to Members of Council on ethical behaviour; B) Providing education to Members of Council on the application of a Code of Conduct; C) Assisting in the development of policies and processes for the Office of the Integrity Commissioner; D) Receiving complaints and conducting investigations in accordance with a Council approved process with respect to alleged contraventions of a Code of Conduct for Members of Council; E) Provide a report on his or her findings and recommendations to Council, (including adjudicating and imposing sanctions as necessary)and; F) Provide an annual summary of report of complaints, investigations and advice provided and make any recommendations for any changes to the approved process; A more formal list of duties and responsibilities of an Integrity Commissioner is provided as Schedule"B"to this report. 1.7 Request To Initiate a Request for Proposal for an Integrity Commissioner In order to establish an Integrity Commissioner, Regional staff recommend in this report that they be permitted to conduct a Request for Proposals (RFP)to appoint an Integrity Commissioner to carry out the role and duties as described in this report and such other duties as Regional Council may assign and Regional staff advise. As part of that RFP, Regional staff would also look into establishing an educational and advisory component for the Integrity Commissioner. It is considered a best practice among integrity professionals and would assist in helping members of the public understand how the Region's accountability policies are applied. Regional staff would also look at the possibility of an Integrity Commissioner being readily available to Members of Council to provide advice in a timely manner and also providing specific legal or other advice related to the Municipal Conflict of Interest Act. The practical effect of this is that prospectively an Integrity Commissioner would be able to respond to requests for assistance from individual members of Council before matters become larger causing formai complaints and warranting costly investigations. If the education and advice functions are provided promptly there theoretically should be a reduced need for the complaint and investigation functions. j Page 7 of 22 Schedule "C"to this report also contains a list oftyp ical qualifications that would be required and the Region would look for in a potential Integrity Commissioner candidate. 1.8 Financial Implications and Costs Related to Integrity Commissioners Regional staff investigated the costs related to the establishment of an Integrity Commissioner. Regional staff have found that Integrity Commissioners typically charge an annual retainer with a second daily/hourly rate for the conduct of investigations or the provision of other delegated services. It appears that the average retainer for an Integrity Commissioner falls within the range of$15,000.00 to $30,000.00. The price of the delivery of these services would be one criteria assessed in any RFP. i Opportunities to partner with the local municipalities, and possibly share costs, will be explored with those who respond expressing an interest to participate and partner in the RFP. 1.9 Conclusion Regional Council is being asked to approve the following with respect to a Code of Conduct: I I A) That Regional Council receive for information the findings of Regional staff regarding the merits and feasibility of establishing of a Code of Conduct for Regional Council; B) That Regional Council approve the development of a Council Code of Conduct, using the draft Code of Conduct with Complaint Procedure attached as Schedule "A" as a framework for discussion; C) That Regional Council approve the concept of appointing an Integrity Commissioner to assist in the development and administration of a Code of Conduct for Regional Council and conduct inquiries; D) Should Regional Council endorse the concept of a Council Code of Conduct, and that it be administered by an Integrity Commissioner, that Regional Council authorize: (a) Region of Durham staff to issue a Request For Proposals (RFP)seeking proposals for the services of an Integrity Commissioner, subject to financing at the discretion of the Region's Finance Department and completing Recommendation 4(b); (b) That prior to implementing Recommendation 4(a) that Regional staff be directed to send copies of this report and the Regional Council direction to all local municipalities within the Region of Durham and request that the local municipalities report back to Regional staff within 30 days from i i i I Page 8 of 22 I receipt of this report as to whether they would like to participate and partner with the Region of Durham in the proposed RFP as described in Recommendation 4(a); (c) That upon completion of the RFP, Regional staff report back in 2016 with a final report and recommendation establishing an Integrity Commissioner along with a recommendation for the recommended proponent pursuant to the RFP; and (d) That upon completion of Recommendation 4(c), Regional staff report back with a final draft of the Code of Conduct for Regional Council for final approval and implementation. 1.10 Attachments Attachment#1 —Schedule "A" Regional Municipality of Durham Draft Code of Conduct with Appendix A- Complaints Procedure Attachment#2—Schedule "B"Typical Roles and Duties of an Integrity Commissioner Attachment#3—Schedule "C"Typical Qualifications of an Integrity Commissioner Candidate Respectfully submitted, I i Matthew L. Gaskell Commissioner of Corporate Services Recommended for Presentation to Committee Ga H. rt�afive .S.W. Chief minOfficer 1y Page 9 of 22 SCHEDULE "A" REGIONAL MUNICIPALITY OF DURHAM DRAFT CODE OF CONDUCT FOR MEMBERS OF COUNCIL 1. PRINCIPLES 1.1. Improving the equality of Regional 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 Region's reputation and integrity. I 1.2. Key statements of principles that underline this Code of Conduct are as follows, members shall: 1.3. serve and be seen to serve their constituents in a conscientious and diligent manner; (a) 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; (b) perform their duties in office and arrange their private affairs, in a manner that promotes public confidence and will bear close public scrutiny; (c) recognize and act upon the principle that democracy is best achieved when the operation of government is made as transparent and accountable to members of the public as possible; and (d) 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 Council. 2. DEFINITIONS 2.1. in this Code of Conduct: (a) "child" means a child bom 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; (b) "Code of Conduct" means the rules which govern the conduct of members established pursuant to the authority of section 223:2 of the Municipal Act, 2009, S.O. 2001, c. 25; i 20 Page 10 of 22 I (c) "complaint" means a written request to investigate the conduct of any member for a possible violation of the Code of Conduct fled in accordance with the Complaint Procedure; (d) "confidential information" means any information in the possession of, or received in confidence by, the Region that the Region is prohibited from disclosing, or has decided to refuse to disclose, under the Municipal Freedom of Information and Protection of Privacy Act, R.S.0. 1990, c. M.56, or any other law, which includes, but is not limited to: (i) information of a corporate, commercial, scientific or technical nature received in confidence from third parties, (ii) personal information as defined in subsection 2(1) of the Municipal Freedom of Information and Protection of Privacy Act, (iii) information that is subject to solicitor-client privilege, (iv) information that concerns any confidential matters pertaining to personal, labour relations, litigation, property acquisition, the security of the property of the municipality or a local board, (v) any other information lawfully determined by the Council to be confidential, or required to remain or be kept confidential by legislation or order, and (vi) any information considered by or made available to Council during a closed meeting pursuant to subsection 239(2) of the Municipal Act, 2001. i (e) "Council" means the council of The Regional Municipality of Durham; (f) "disclosure statement"means that statement set out in Section 9.4 of the Code of Conduct; (9) "gift and benefits" means any cash or monetary equivalent,fee object of value, service, travel and accommodation, or entertainment; (h) "information"means any record, document, data, material, correspondence or evidence however recorded, whether oral or in printed form, on film, by electronic means or otherwise; (i) "Integrity Commissioner"means the Integrity Commissioner appointed by the Council pursuant to section 223.3 of the Municipal Act, 2009; (j) "lobbyist"means an individual, organization or business that: I 21 i Page 11 of 22 (i) lobbies, or causes lobbying of, any public office holder of the Region, the Council or a municipal corporation or a local board of the Region, (ii) the member knows is attempting or intending to lobby the member, any public office holder of the Region, the Council or a municipal corporation or a local Board of the Region, or (iii) is maintaining an active lobbyist registration with the Region, whether or not with respect to any specific or current subject matter; (k) "member" means a member of the Council, unless the context otherwise requires; (1) "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; (m) "person" includes a corporation, partnership, association and any other entity, as the context allows, and expressly includes a member as well as Council; (n) "Region" means The Regional Municipality of Durham; (o) "spouse" means a person to whom a person is married or with whom the person is living in a conjugal relationship outside marriage; i (p) "staff' means the municipal administrative staff of the Region and of its municipal corporations and local boards. 3. APPLICATION OF THIS CODE 3.1. This Code of Conduct applies to every member. 4. COMPLIANCE WITH DECLARATION OF OFFICE 4.1. Every member shall act in accordance with his or her declaration of office sworn pursuant to section 262 of the Municipal Act, 2009. 5. ADHERENCE TO COUNCIL POLICIES AND PROCEDURES 5.1. Every member shall observe and comply strictly with every provision of this Code of Conduct, as well as all other policies and procedures adopted or established by Council affecting the member, whether or not acting in his or her capacity as a member of Council. 22 i Page 12 of 22 i 6. CONDUCT AT MEETINGS 6.1. 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 Region's Council Rules of Procedure By-law, this Code of Conduct, and any other applicable law. 7. CONDUCT RESPECTING OTHERS 7.1. Every member has the duty and responsibility to treat all members of the public, other members and all staff appropriately and without abuse, bullying or intimidation, and to ensure that the work environment is free from discrimination and harassment. 7.2. Every member shall not: (a) not use indecent, abusive or insulting-words or expressions toward any other member, any member of staff or any member of the public; and (b) 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. 8. CONDUCT RESPECTING STAFF 8.1. Every member acknowledges that staff operate under the direction of the senior municipal administration, and in accordance with the decisions of Council, and are required to serve the Region as a whole and not the needs or desires of any j individual member. 8.2. Every member shall: (a) 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; and (b) show respect for staff, and for their professional capacities and responsibilities. 8.3. Every member shall not: (a) maliciously or falsely injure or impugn the professional or ethical reputation of any member of staff; (b) 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; and j 23 i Page 13 of 22 (c) use or attempt to further his or her authority or influence by intimidating, threatening, coercing, commanding or influencing improperly any staff member or interfering with that Staff person's duties, including the duty to disclose improper activity. 9. GIFTS, BENEFITS, SERVICES AND HOSPITALITY 9.1. In order to preserve the image and integrity of the Region, business gifts to Members are discouraged. The Region recognizes that moderate hospitality is an accepted courtesy of a business relationship. However, Members should not accept any gift, benefit, service, entertainment or hospitality which could be seen to compromise their decision on a matter or create any obligation or special consideration by an individual, group or organization; 9.2. There will be no solicitation of gifts, benefits, services or hospitality in recognition of the fulfillment of the Member's official duties; 9.3. If the refusal of any gift or act of hospitality will strain the Region's business relationship,the Regional Chair or Chief Administrative Officer may accept it on behalf of the municipality with the appropriate acknowledgment; 9.4. Generally, the Regional Chair or Chief Administrative Officer will be the official recipient of those gifts afforded to the Region for ceremonial, symbolic, protocol or official business purposes. Members will turn over such a gift to the Regional Chair or Chief Administrative Officer. Wherever possible, ceremonial, symbolic, protocol or official business gifts should be presented at a meeting of Council; 9,5. This section does not preclude Members from accepting: (a) Token gifts, souvenirs, mementos, or hospitality received in recognition for service on a committee,for speaking at an event, or for representing the Region at an event; (b) Political contributions that are otherwise offered, accepted, and reported in accordance with the Municipal Elections Act or other applicable law; (c) Food and beverages at meetings, banquets, receptions, ceremonies, or similar events; (d) Food, lodging, transportation, entertainment provided by other levels of government, by other local governments, or by local government boards or commissions; i (e) A stipend from a board or commission that the Councillor serves on as a result of an appointment by Council; i 24 i Page 14 of 22 I (f) Reimbursement of reasonable expenses incurred in the performance of their office, and the performance of activities connected with municipal associations; (g) Gifts of a nominal value that are received as an incident of protocol or social obligation that normally and reasonably accompany the responsibility of the office; (h) Services provided without compensation by persons volunteering their time for an election campaign. 9.6. Members will be required to exercise their personal judgment of the provisions within this section. 10. CONFIDENTIAL INFORMATION 10.1. No member shall: (a) 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; (b) 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; (c) disclose a matter, the substance of the matter, and information pertaining to a matter, that has been debated or discussed at a meeting closed to the public, and shall be maintained as confidential, unless authorized by the Council or legislation to be released, generally or subject to conditions, and such are complied with; (d) disclose the content of any matter referred to in the preceding paragraph or the subject-matter of deliberations, at a meeting closed to the public meeting, only after the Council or committee lawfully and knowingly discusses the information at a meeting that is open to the public or releases the information to the public; (e) without lawful authority, disclose, or make personal use of, any of the following types of confidential information: (i) information concerning litigation, negotiation or personnel matters, (ii) 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), 25 i I I Page 15 of 22 I i (iii) price schedules in any contract, tender or proposal document while such remains a confidential document, (iv) information deemed to be "personal information" under the Municipal Freedom of Information and Protection of Privacy Act, and (v) any other information or statistical data required by law not to be released; and (f) obtain access, or attempt to gain access,to confidential information 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. 11. USE OF REGIONAL PROPERTY, SERVICES AND OTHER RESOURCES 11.1. No member shall (a) use, or permit the use of, Regional land, facilities, equipment, supplies, services, staff or other resource, including any municipally-owned information, website, transportation delivery service or funds allocated for the member expenses of his or her office, for any purpose or activity other than the lawful business of the Region; or (b) seek or acquire any personal financial gain from the use or sale of confidential information, or of any Regionally-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 copy righted, of which property remains exclusively that of the Region. 12. CONDUCT OF ELECTION CAMPAIGN 12.1. Every member shall comply with all applicable requirements of the Municipal Elections Act, 9996, S.O. 1996, c. 32, Sched. 12.2. No member shall: (a) use confidential information,facilities, equipment, supplies, services or other resources of the Region, including any member newsletter or website linked through the Region's website, for any election campaign or campaign-related activity; (b) undertake campaign-related activities on municipal property during regular staff working hours unless authorized by the Region; or (c) use the services of any person for election-related purposes during hours in which that person receives any compensation from the Region. 26 ! Page 16 of 22 � I I � 13. NO IMPROPER USE OF INFLUENCE 13.1. No member shall: (a) 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; (b) 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, friend, or associates, business or otherwise; (c) attempt to secure preferential treatment beyond activities in which members normally engage on behalf of their constituents as part of their official duties; or (d) hold out the prospect or promise of future advantage through the member's supposed influence within Council, in return for any action or inaction. 13.2. For the purposes of this provision, "private advantage" does not include a matter that: d (a) is of general application; (b) affects a member, his or her parents/children or spouse, staff, friends or associates, business or otherwise, as one of a broad class of persons; or (c) concerns the remuneration or benefits of a member. 13.3. Section 13.1 does not prevent a member from requesting that Council grant a lawful exemption from a Regional policy. 14. NO REPRISAL OR OBSTRUCTION IN THE APPLICATION OR ENFORCEMENT OF THIS CODE 14.1. Every member must respect the integrity of the Code of Conduct and inquiries and investigations conducted under it, and shall cooperate in every way possible in securing compliance with its application and enforcement. 14.2. No member shall obstruct the Integrity Commissioner, his or her designate, or any other Regional official involved in applying or furthering the objectives or requirements of the Code of Conduct, in the carrying out of such responsibilities, or pursuing any such objective. No member shall undertake any act of reprisal or . threaten reprisal against a complainant or any other person for providing relevant information*to the Integrity Commissioner or any other person under the Code of Conduct. 27 ' I Page 17 of 22 15. STATUTES REGULATING THE CONDUCT OF COUNCILLORS 15.1. Members acknowledge that in addition to this Code of Conduct, the following legislation also governs the conduct of members: (a) Municipal Act, 2001; (b) Municipal Conflict of Interest Act, R.S.O. 1990, c. M.50; (c) Municipal Elections Act, 1996; (d) Municipal Freedom of Information and Protection of Privacy Act; (e) Occupational Health and Safety Act, R.S.O. 1990, c. 0.1; (f) Human Rights Code, R.S.O. 1990, c. H.19; and (g) Criminal Code, R.S.C. 1985, c. C-46. 15.2. 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 or the Mpnicipal Elections Act, 9996, or being found to have failed to comply with the Municipal Conflict of Interest Act, whether or not the conduct in question involves a contravention of this Code of Conduct.. 15.3. In the case of any inconsistency between this Code of Conduct and a federal or provincial statute or regulation, the statute or regulation shall prevail. 15.4. All references to any statute, regulation, by-law or legislation shall be deemed to be a reference to the statute, regulation, by-law or legislation as amended, consolidated, replaced or superseded. 16. INTEGRITY COMMISSIONER 16.1. The Integrity Commissioner shall be responsible for performing in an independent manner the following functions as assigned by the Region with respect to: (a) the application of the Code of Conduct; and (b) the application of any procedures, rules and policies of the Region governing the ethical behaviour of members; and, without limiting the generality of the foregoing, shall be entitled to undertake investigations or not undertake investigations in accordance with provisions of Part V.1 of the Municipal Act, 2009. i i 28 Page 18 of 22 16.2. In addition, to the responsibilities set out in Section 16.1, the Integrity Commissioner shall also provide: (a) information to Council as to members' obligations under the Code of Conduct and the Complaint Procedure; (b) advice to individual members regarding specific situations as they relate to the application of the Code of Conduct; (c) advice to Council on other policies and procedures that relate to the ethical behavior of members; (d) information to the public regarding the Code of Conduct and the obligations of members under the Code of Conduct; and (e) an annual report to Council on the activities of the Integrity Commissioner. 16.3. Without limiting the generality of Section 16.1, the Integrity Commissioner may determine, on a case-by-case basis, whether to undertake an investigation or not to undertake an investigation. The Integrity Commissioner shall be entitled to summarily dismiss a complaint filed in accordance&th the Complaint Procedure on the basis that it constitutes in his or her opinion, an abuse of process or is frivolous or vexatious. 16.4. Without limiting the generality of Article 16, all determinations of the Integrity Commissioner under the Code of Conduct shall be made in his or her own absolute discretion and shall be final and binding. 17. COMPLAiNTs 17.1. All complaints pursuant to the Code of Conduct shall be filed in accordance with the Complaints Procedure in Appendix"A". 18. PENALTIES 18.1. Council may,where it has received a report from its Integrity Commissioner that there has been a violation of the Code of Conduct, impose one of the following penalties on a member who has been found to be in contravention of the Code of. Conduct: (a) a reprimand; or (b) suspension of the remuneration paid to the member in respect of his or her services as a member for a period of up to ninety(90) days. i 29 Page 20 of 22 SCHEDULE "B" TYPICAL ROLES AND DUTIES OF AN INTEGRITY COMMISSIONER 1. Role of the appointed Integrity Commissioner will be to: 2. Function independently from Civic Administration and report directly to Regional Council. 3. Investigate complaints and alleged breaches of the"Code of Conduct for Members of Council" in accordance with a "The Regional Municipality of Durham Code of Conduct for Members of Council Complaint Protocol" (draft attached to Schedule A). 4. Review the"Code of Conduct for Members of Council"and make recommendations thereon, at a minimum of once per year. 5. Serve as an advisor to individual Members of Council in relation to the"Code of Conduct for Members of Council", and any procedures, rules and policies of the municipality governing ethical behavior,and act as a proactive educator for the Regional Council, the Civic Administrati6n and the Public. 6. Provide annual reports to the Municipal Council, summarizing his/her activities in accordance with section 223.6 of the Municipal Act, 2001. 7. Provide individual investigative reports, as required, which will include background concerning a complaint and recommendations to Municipal Council with respect to a complaint for its consideration, in accordance with section 223.6 of the Municipal Act, 2001. 8. The Integrity Commissioner will work independently and it is expected that the bulk of the work will be carried out at his/her workplace and not on Regional property, however,space at a Regional facility to undertake interviews will be made available, as required. ADDITIONAL DUTIES OF AN INTEGRITY COMMISSIONER Under the Municipal Act, 2001, Council has the authority to assign duties and functions to the Integrity Commissioner. Regional Staff have reviewed various Codes of Conduct and roles given to other Integrity Commissioners and typically have found the following duties being assigned: 1. Provide advice to Members of Council on ethical behaviour; 2. Provide education to Members of Council on the application of a Code of Conduct for Members of Council; 3. Assist in the development of the policies and processes for the Office; i 31 i Page 19 of 22 19. ANNUAL REPORTS 19.1. The Integrity Commissioner shall submit an annual report to Council which will include information on the nature and volume of activity for the past year and provide examples, while maintaining the anonymity of the persons involved, in respect of advice provided and the nature of complaints received and responded to. 19.2. The annual report of the Integrity Commissioner shall be provided to Council for information purposes.The report is a public document. 19.3. The Integrity Commissioner shall file his or her annual report by October 31 in the year following the Integrity Commissioner's appointment and annually thereafter. i 3 i I 30 Report#2015-A-40 Page 21 of 22 4. Receive complaints and conduct investigations in accordance with the Council- approved process with respect to alleged contraventions of a Code of Conduct for Members of Council; 5. Provide a report on his or her findings and recommendations to City Council (which will adjudicate and impose sanctions as necessary); 6. Provide an annual summary report of complaints, investigations and advice provided and make any recommendations for any changes to the approved process; and Act as the Region's Meetings Investigator and the Region's Lobbyist Registrar in accordance with the duties set out in the reports establishing those offices. Ottawa's Integrity Commissioner also acts as a lobbyist register. LEGISLATED ROLE OF THE INTEGRITY COMMISSIONER PURSUANT TO SECTION 223.2 OF THE MUNICIPAL ACT 1. The Integrity Commissioner has the powers of inquiry, sanction and delegation as well as confidentiality and reporting requirements. 2. The Integrity Commissioner reports directly to Council on matters related to the j Code of Conduct and other policies, rules or procedures related to ethics for Council and/or local boards; ` 3. The Integrity Commissioner has the power to undertake investigation into complaints alleging contraventions of the applicable code of conduct while respecting confidentiality; 4. The Integrity Commissioner's reports are public and s/he is permitted-to disclose necessary information related to the findings while maintaining confidentiality. I I 32 Report#2015-A-40 Page 22 of 22 SCHEDULE "C" PROPONENT QUALIFICATIONS TYPICALLY SOUGHT FOR INTEGRITY COMMISSIONERS The qualifications that a candidate for the position of Integrity Commissioner should possess include: 1. Proven impartiality and neutrality, such as that of a judge; 2. An ability to provide services on a part-time,flexible and as-needed basis; 3. No other involvement in political campaigning/endorsement, or related conflicts of interest; 4. No financial interest in the work undertaken by the Region of Durham; 5. An independent person who personifies high ethical standards; 6. Experience managing sensitive inquires, conducting investigations and making appropriate recommendations; 7. Excellent communication skills; I 8. Familiarity with investigator procedures and the.applicable legal principles, 9. General knowledge and appreciation of municipal government; 10. Ability to interpret and apply the provisions of various statutes, regulations, policies and other enabling frameworks; 11. Impartiality, wisdom, sound judgment combined with the ability to inspire trust and confidence; and, 12. At least ten years of senior-level management, legal or quasi-judicial experience. I i i 33 Attachment 2 to Report CLD-010-16 C1ff;WgWfi LEGAL REPORT LEGAL DEPARTMENT Meeting: GENERAL PURPOSE AND ADMINISTRATION COMMITTEE Date: September 9, 2013 Resolution#: 01��9''y 6--'�By-law#: 610�9- -t3 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. 1 Submitted by: Reviewed bye Andrew C. Allison, B. Comm., LL.B. Franklin Wu, MAOM Municipal Solicitor Chief Administrative Officer I I CORPORATION OF THE MUNICIPALITY OF CLARINGTON 40 TEMPERANCE STREET, BOWMANVILLE, ONTARIO LIC 3A6 T 905-623-3379 REPORT NO.: LGL-007-13 PAGE 2 1.0 BACKGROUND I I 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, 2009 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 I I i I i 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, i I i I i I I I 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. . i 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 i ATTACHMENT NO, 1 TO REPORT LGL-007-13 i r Schedule A to By41aw 2009-W Code of Conduct— Members of Councll 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. i i ATTACHMENT NO. 2 TO REPORT LGL-007-13 I Ontario Municipal Act MODEL FORM OF CODE OF CONDUCT FOR MEMBERS OF COUNCIL I, 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, Ivey 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 conscl- entious and diligent manner; • Members of Council mustbe committed to perforniing 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, APPLICATION OF THIS CODE This Code of Conduct applies to every member of the Council. III. DEI+IMTIONS 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; COC-2 i i 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 A 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 COC-3 i 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 iBENEMTS — 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 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 _ •I more of the exceptions listed below, Each of the following is recognized as an exception: (a) compensation authorized by law; (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; _I (c) a political contribution otherwise authorized and reported as required by law,in the — I case of a member running for office; IIII (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 1 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; COC-4 i i i I 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 solicitoir-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. COC-5 I I i 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, 7_I 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, s l 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: • .information concerning litigation,negotiation or personnel matters; J • information the publication of which may infringe on the rights of any person(e.g. -7- 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 • information 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, X,L 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 L' exclusively that of the municipality. COC-6 L_ I Code of Conduct for Members of Council XII, CONDUCT OE ELECTIOI t CAMPAIGN Every member shall comply with all applicable requirements of the 11unicipal 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 wonting 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 Pri SPROPER 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. XIV. NON-COi13PLIANCE 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 11unicipal 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. COC-7 I i j i I Ontario Municipal Act I 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; S 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. NO REPRISAL OR OBSTRUCTIONIN IN TEE APPLICATION OR ENYORCE- Iti1EPTT OF TBIS 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. STATUTES 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 Municipal Act, 2001,as amended; • the tYlunicipal Can of Interest Act; • the 11unicipal Elections Act,1996;and • the 1Ylttnicipal.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, COC-8 ATTACHMENT NO, 3 TO REPORT LGL-007-13 dTOR0190 ' CODE OF CONDUCT COMPLAINT PROTOCOL FOR MEMBERS OF COUNCIL AUTHORITY: Historic (1) Clause NoA 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 CCI 1.8 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 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, i 2 i (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 Cleric 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. INote;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 3 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 Cleric 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 4 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 5 I i I i I 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. i I I 6 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 tools 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 II of the Public Inquiries Act. 7 I i (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 i 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 8 I I i i I I i determines that it should not take any action. i (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. i i 9 I i Attachment 3 to Report CLD-010-16 LEGAL REPORT LEGAL DEPARTMENT Meeting: GENERAL PURPOSE AND ADMINISTRATION COMMITTEE Date: October 28, 2013 Resolution#: 6PI� -S1/--1 Report#: LGL-010-13 File#: A09.GE and L2030-01-09 Subject: CODE OF CONDUCT RECOMMENDATION: It is respectfully recommended that the General Purpose and Administration Committee recommend to Council the following: 1. THAT Report LGL-010-13 be received for information. � r l � Submitted by: ;3x `, �� Reviewed by,".--- An�few C. Allis6n, B. Comm., LL.B. Franklin Wu, MAOM Municipal Solicitor Chief Administrative Officer CORPORATION OF THE MUNICIPALITY OF CLARINGTON 40 TEMPERANCE STREET, BOWMANVILLE, ONTARIO LIC 3A6 T 905-623-3379 REPORT NO.: LGL-010-13 PAGE 2 1.0 BACKGROUND 1.1 At its meeting on September 9, 2013, the General Purpose and Administration Committee passed the following resolutions: Resolution #GPA-445-13: THAT Staff be directed to develop a new Code of Conduct which includes all of the elements of the Code of Conduct as outlined in the Model Form of Code of Conduct prepared for the Municipal Integrity Commissioner's Association, Attachment 2 to Report LGL-007-13. Resolution #GPA-446-13: THAT the foregoing resolution #GPA-445-13 be referred back to staff for a further report on what portions of the Model Code of Conduct are already covered within Municipality of Clarington By-laws, 1.2 Model Form of Code of Conduct prepared for the Municipal Integrity Commissioner's Association (the "Model Code") is attached to this Report (Attachment 1). The Code of Conduct adopted by Council in November 2009 is also attached to this Report (Attachment No. 2). 2.0 DISCUSSION 2.1 The following table lists the existing Clarington by-laws and policies that correspond to the 10 substantive (but non-enforcement) sections of the Model Code. MODEL CODE CLARINGTON BY-LAW or POLICY IV. COMPLIANCE WITH DECLARATION There are no Municipal by-laws or policies OF OFFICE that apply to the declaration of office, but Every member shall act in accordance making the declaration under oath is a with his or her declaration of office, statutory requirement (section 232 of the Municipal Act, 2001). V. ADHERENCE TO COUNCIL Several policies and procedures apply to POLICIES AND PROCEDURES the conduct of employees of the Every member of Council shall observe Municipality but not to members of Council, and comply with every provision of this The most notable is Policy E1 - Code of Code of Conduct, as well as all other Ethics (see Attachment 3 to this Report), policies and procedures adopted or In addition to the Municipality's Code of established by Council affecting the Conduct, the conduct of members is Councillor, acting in his or her capacity as regulated through certain provisions in a member of Council. Procedural By-law 2011-016, Purchasing By-law 2010-112, Policy E5 (Harassment), Polic F8 Freedom of Information & I REPORT NO.: LGL-010-13 PAGE 3 Protection of Privacy), and Policy F110 (Use of Corporate Resources for Election Purposes) as described in this table and in section 2.2 of this Report. VI. CONDUCT AT MEETINGS PROCEDURAL BY-LAW 2011-016 Every member shall conduct himself or 10.1 Conduct of Members of Council, herself properly and in a civil manner at GPA and Special Committees Council, committee and other meetings, 10.1.1 No Member shall: and in accordance with the provisions of the Procedure By-law, this Code of (a) speak disrespectfully of any Conduct, and other applicable law. elected assembly; VII. CONDUCT RESPECTING OTHERS (b) use offensive words or Every member of Council has the duty and unparliamentarily language or responsibility to treat members of the speak disrespectfully against public, one another and staff appropriately the Council, against anyMember, or against any officer and without abuse, bullying or intimidation, or employee of the Municipality; and to ensure that the municipal work environment is free from discrimination and harassment. (d) disobey the Rules of Procedure A member shall not use indecent, abusive or a decision of the Chair, on or insulting words or expressions toward questions of Points of Order or any other member, any member of staff or procedure or upon the any member of the public, interpretation of the Rules of A member shall not speak in a manner Procedure except where the that is discriminatory to any individual, ruling of the Chair is reversed based on that person's race, ancestry, by Council pursuant tosubsection 10.6.3. If a place of origin, creed, gender, sexual Member persists in any such orientation, age, colour, marital status, or disobedience after having been disability. called to order by the Chair, the VIII. CONDUCT RESPECTING STAFF Chair shall forthwith order him Under the direction of the senior municipal or her to vacate the Council administration, and in accordance with the Chambers or room in which the decisions of Council, municipal staff are Meeting is being held, but if the required to serve the municipal corporation Member apologizes he or she as a whole. Every member shall be may, by majority vote of the respectful of the role of staff to provide Members, be permitted to advice based on political neutrality and retake his or her seat; objectivity and without undue influence from any member or faction of the Council. POLICY E5 (Harassment) Accordingly, no member shall maliciously or falsely injure or impugn the professional This Policy provides for independent or ethical reputation of any member of investigations into allegations of staff. Every member shall show respect harassment by members of Council (see for staff, and for their professional Attachment 4). capacities and responsibilities •.. i i REPORT NO.: LGL-010-13 PAGE 4 I i IX. GIFTS AND BENEFITS No comparable Municipal by-law or policy. X. CONFIDENTIAL INFORMATION PROCEDURAL BY-LAW 2011-016 ... 10.1 Conduct of Members of Council, GPA and Special Committees No member shall disclose, release or 10.1.1 No Member shall: publish by any means to any person or to the public any confidential information acquired by virtue of his or her office, in (e) where a matter has been any form, except when required or discussed in a closed Meeting, authorized by Council or otherwise by law and where the matter remains to do so, confidential, disclose the content of the matter or the substance of the deliberations of the closed Meeting to any person. PURCHASING BY-LAW 2010-112 Disclosure 95. No Corporation employee or any member of Council shall disclose any details regarding Bids except as permitted by this by-law and the Municipal Freedom of Information and Protection of Privacy Act. POLICY F8 (Freedom of Information & Protection of Privacy) This policy deals with the use of confidential information by members of Council (see Attachment 5). XI. USE OF CITY PROPERTY, CODE OF CONDUCT SERVICES AND OTHER RESOURCES 2 Conduct No member of Council shall use, or permit Members of Council shall not: the use of, municipal land, facilities, equipment, supplies, services, staff or other resource, including any municipally- b) use municipal property, equipment, owned information, website, Council supplies or services of consequence transportation delivery service or funds for activities not associated with the allocated for member of Council expenses, discharge of official duties. for any purpose or activity other than the lawful business of the municipal c) benefit from the use of information corporation. No member shall seek or relating to the affairs of the acquire any personal financial gain from Municipality. the use or sale of confidential information, d) benefit from the use of information or any municipally-owned intellectual i i i REPORT NO.: LGL-010-13 PAGE 5 property including any invention, creative acquired during the course of official writing or drawing, computer program, duties which is generally not available technical innovation, or any other to the public. information or item capable of being PURCHASING BY-LAW 2010-112 patented or copyrighted, of which property remains exclusively that of the Personal Purchases municipality. 97 (1)In this section, "Personal Purchase" means a purchase of Goods and/or Services requested by an elected official, an appointed official or by any other employee of the Corporation that is not required for the purposes of the Corporation or a Local Board. (2)No Personal Purchases shall be made by the Corporation for any Member of Council, member of a Local Board, or employees of the Corporation, unless specifically authorized. XII. CONDUCT OF ELECTION POLICY F110 (Use of Corporate CAMPAIGNS Resources for Election Purposes) Every member shall comply with all This Policy (approved by.Council on applicable requirements of the Municipal January 27, 2010) comprehensively deals Elections Act, 1996. No member shall use with all of these matters (see Attachment confidential information, facilities, 6). 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 IMPROPER USE OF No comparable Municipal by-law or policy. INFLUENCE 2.2 Code of Conduct policies 2 e), g) and h) and section 82 of Purchasing By-law 2010-112 (reproduced below) govern the conduct of members with respect to the procurement of goods and services. There are no comparable provisions in the Model Code. i REPORT NO.: LGL-010-13 PAGE 6 i CODE OF CONDUCT 2. Conduct Members of Council shall not: v 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. g) bid on the sale of goods except those disposed by public auction. h) use Municipal buying power for personal gain or benefit. PURCHASING BY-LAW 2010-112 Conflict of Interest 82. The, participation of members of Council and employees of the Corporation in the procurement process shall be governed by, in the case of members of Council, the Municipal Conflict of Interest Act and, in the case of employees, by the Code of Ethics Policy H3. 2.3 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: Model Code of Conduct Attachment 2: Code of Conduct— Members of Council (November 2009) Attachment 3: Policy E1 - Code of Ethics Attachment 4: Policy E5 - Harassment Attachment 5: Policy F8 - Freedom of Information & Protection of Privacy Attachment 6: Policy F110 - Use of Corporate Resources for Election Purposes ATTACHMENT NO, 1 TO REPORT LGL-0010-13 Schedule A to Bylaw 2009-10 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, responsibiAles, 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 disdharge 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 Munlclpal 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 varlous statutes pertaining to the roles, responsibilities, actions and behaviours governing members of council apply to.Instances of improper conduct, i ATTACHMENT N0, 2 TO REPORT LCL-0010-13 Ontario Municipal Act MODEL FORM OF CODE OF CONDUCT FOR MENBE S 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 tum, 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, APPLICATION OF THIS COBE This Code of Conduct applies to every member of the Council: III, DE NITIONS fn 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]; "infozmation"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; COC-2 • i i 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, COIbr LIAt`10E WITH DECLARATION OF OFFICE Every member shall adt 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. VII, CONDUCT RESPECTING OTHERS Every member of Council has the duty and responsibility to treat members ofrhe 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 whole,.Every member shall be respectful of the role of-staff to provide advice based on n 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 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 COC-3 I _ I • I 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; — M GUTS AND BP-,.EKTS � 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 _ f to the performance of the member's duties,is deemed to be a gift or benefit to that member, 1 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 offzee,unless permitted under one or = •I more of the exceptions listed below. Each of the following is recognized as an exception: (a) compensation authorized by law; (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 l 'I 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 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; 1 (ii) the person extending the invitation, or a representative of the organization holding the event,is in attendance;and 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 amember,subject to thelimitations set outin any applicable — municipal policy, Except for exception(c)(political contributions allowable by law), these exceptions do not i 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; COC-4 i ' � I i I 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 orbenefitmight, 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. CONFIDENTLI L 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 Wor- 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 othez information lawfully determined by the Council to be confidential, or required to remain or be kept confidential by legislation or order. COC-5 i I 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, _J 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. 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: �t • _information concerning litigation,negotiation or personnel matters; J information the publication of which may infringe on the rights of any person(e.g. -7 " 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; • information deemed to be"personal information"under the Municipal Freedom of 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. Y�. 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 T' invention,creative writing or drawing,computer program,technical innovation,or any other f information or item capable of being patented or copyrighted, of which property remains exclusively that of the municipality, Tt COC-6 :L 1. _ Code of Conduct for Members of Council CONDUCT OF ELECTION CAMPAIGN Every member shall comply with all applicable requirements of the A(unicipal 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, NO ibi J?R0PER USF OF I`UJTj7NCE 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 acdop 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 dmember of Council from requesting that Council grant a lawful exemption from a policy. XIV, NON-C OIWLLINCE MTH=CODE OF COi'tD CT—SAINCTIONS A member found by Council to have contravened any provision of this Code,is subject to one ormore of the following consequences imposed by Council,as-referred to in Che 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 lbcal board,as the case may be,for a period of up to 90 days. COC-7 i Ontario Municipal Act j 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, 7, INO REPRISAL OR OPS'TRUCT'I01IN LN THE API'iGICATi01 T OR 11Y RCE- MENT OF TRTS•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. STAT'UT'ES REGULATTNG TEE COi*DUCT OF COUNCILLORS In addition to this Code of Conduct,the following Ontario legislation also governs the conduct of members of Council: • the Municipal 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. COC-8 i Corporatep o1`lcJ Leadh g the Way TO POLICY TYPE: Working Conditions and Programs ATTACHMENT# 6 POLICY TITLE: Code of Ethics REPORT# �'g -4I" POLICY#: E1 POLICY APPROVED BY: Council EFFECTIVE DATE: December 10,2001 REVISED: September 18, 2012 APPLICABLE TO: All Employees 1. Purpose: 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. 2. Policies/Procedures: Conduct a) Employees are expected to promote the goals, objectives and policies of the Municipality of Clarington. b) Employees will acknowledge and recognize the dignity and worth of every resident they serve and person with whom they work. c) Employees shall not breach the public trust or misappropriate public funds and/or resources. d) Employees shall not use Municipal property, equipment, supplies or services of consequence for activities not associated with the discharge of official duties. e) Employees shall not participate in any decision,promotion or make any recommendation to their supervisor, Committee or Council, in which they or their immediate family has any financial interest except as a resident of the Municipality. (Refer to Appendix for clarification). f) Employees shall not solicit or accept any gift,present or favour, the acceptance of which shall place, or appear to place, the employee under an obligation to the donor or the Municipality in a compromising situation. (Refer to Appendix for clarification). g) Employees shall not place themselves in a position where they are under obligation to any person who might benefit from consideration or favour on their part or who may seek in any way,preferential treatment. h) Employees shall not benefit from the use of information relating to the affairs of the Municipality. E1 — Code of Ethics Page 1 of 3 i Corporate Policy J Leading the Way i) Employees shall not benefit from the use of information acquired during the course of official duties which is not generally available to the public, J) Employees shall not accept outside employment while in the employ of the Corporation where such employment would place or appear to place them in a conflict of interest situation. k) Employees shall not 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. 1) Employees shall not treat or provide preferential treatment to any enterprise, organization, group or person. m) Employees shall 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. n) Employees are expected to report to work in a fit condition to carry out their work duties. Employees reporting to work in an unfit condition will be sent home without pay. The Corporation considers an employee unfit for work if they are under the influence of alcohol or other substances which may compromise their ability to work. This includes legal medications which may impair one's effectiveness and/or judgment and those other substances which are illegal. Likewise, consumption of alcohol or illegal substances during working hours and on corporate property is strictly forbidden. o) Employees shall not bid on the sale of the Municipality's goods except those disposed by Public Auction. p) Employees shall not use Municipal buying power for personal gain or benefit. Outside Work Employees shall not, without the approval of the Department Head or the Chief Administrative Officer as the case may be; a) Engage in any business or transaction or have financial or other personal interest, which is incompatible with the discharge of their official duties. b) Engage in any outside work or activity or business undertaking; i) That interferes or appears to interfere with the employee's duties, in which the employee has an advantage or appears to have an advantage derived from the employment in the Municipal Corporations. ii) In a professional capacity that will or might appear to influence or affect the carrying out of duties as a Municipal employee. El —Code of Ethics Page 2 of 3 Corporate Policy (Leading the Way Communications a) An employee shall be courteous, civil and act in good faith with all persons with whom he/she is dealing with in the course of their employment. An employee shall not in the course of their employment send correspondence or otherwise communicate to any other person in a manner that is abusive, offensive or otherwise inconsistent with the proper tone of a professional communication from a Municipal employee, except in extenuating circumstances such as an abusive member of the public. b) Employees should recognize that as a representative of the Municipality,their actions both during and after working hours reflect the Municipality of Clarington. Therefore, they are encouraged to adhere to this policy regarding communications when addressing council or elected representatives even as a private citizen. Confidential Information In the course of employment with the Municipality, an employee may work with information and/or materials which are confidential. Each employee has a moral and legal obligation not to disclose any such information or use that information for the gain or profit of the employee or any other person. This obligation continues even after the employee discontinues working for the Municipality of Clarington. Disclosure Whenever an employee considers that he or she could be involved in a conflict of interest as prohibited in this policy, the employee shall immediately disclose the situation to the Department Head(or his or her designate), or the Chief Administrative Officer, as the case may be. The voluntary disclosure of areas of conflict of interest shall be treated as confidential by the employee and Municipal authorities and the employee should abide by the advice given to him/her, Contravention Should a situation arise which appears to be in contravention of this policy,the Chief Administrative Officer shall, in consultation with the employee's Department Head and any other Municipal Official he may wish to consult, determine what action is appropriate in the, circumstances, which may include discipline up to and including termination of service, The matter may then be reported, at the discretion of the Chief Administrative Officer,to the appropriate Committee(s) of Council for information. 3. Appendix: Code of Ethics Guidelines E1 —Code of Ethics Page 3 of 3 Appendix to Policy E1 Code of Ethics Guidelines The following interpretation and guidelines are provided to augment and/or to clarify the Code of Ethics Administrative and Corporate policy. If there is any question arising out of the following, employees are encouraged to contact the Chief Administrative Officer whose decision will be final. Sections. Conduct (e) "Immediate family member"used in this subsection shall mean spouse, father,mother, son or daughter. Conduct(f) Any employee shall not accept any gift either at home or at the place of business from any person, company or business, irrespective of whether or not the person, company or business has any business connection with the Municipality,in the past, currently or in the fixture. In the latter situation, it is understood that an employee cannot predict who will be doing business with the Municipality in the future. In this situation, an employee should seek advice from the Department Head. For example, a development company, or a potential supplier may not have any past or current business with the Municipality. However, the employee should be cognizant of the nature of the business of these companies and should not accept any gift from these companies because it would place the employee in a compromising situation. The above guidelines apply to personal gifts during the Christmas season. The only exception being a gift to the Department as a whole and could include such items as a fruit basket, chocolates, etc., during the Christmas Season. In the event gifts are dropped off before the employee has the opportunity to refuse acceptance, the gifts should be turned over to the Department Head who shall; a) Return the gifts if it does not cause the Municipality to incur unnecessary expenses; or b) Telephone the donor and request to have the gifts picked up. Should the gifts not be picked up, the Department Head shall donate the gifts to a local charity and advise the donor in writing of the action taken. Outside The Code of Ethics was never intended to prohibit.any employee of the Work Municipality to augment his/her income by engaging in other part-time employment opportunities which bear no resemblance to his/her municipal work. If the nature of the part-time/outside work is related, the employee should seek prior clearance from the Department Head. I I ATTACHMENT NO, 4 TO REPORT LGL-0010-13 Corporate Policy J Letcdirtg fire 3Yay POLICY TYPE: Working Conditions and Programs POLICY TITLE: Harassment POLICY#: ES POLICY APPROVED BY: Chief Administrative Officer EFFECTIVE DATE: April 28, 1997 REVISED: October 2,2012 APPLICABLE TO: All Employees and Elected Officials The Corporation of the Municipality of Clarington is dedicated to providing a healthy and safe work environment. Acts of workplace harassment by staff, volunteers or visitors will not be tolerated. The Municipality of Ciarington has a zero tolerance policy regarding workplace harassment. Any violation of the policy will be investigated and may result in disciplinary action up to and including teinnination with cause. Violence in the workplace is dealt with under a separate Health&Safety Policy(E-8 Workplace Violence). 1. Purpose: a) To convey the Municipality's commitment to maintaining a workplace free of harassment, b) To ensure employees know what to do if he/she has been harassed or accused of harassing another individual, and are aware of their responsibilities in maintaining a harassment free workplace 2. Definitions 2.1 Workplace: any location where business of the Municipality is-being conducted such as offices and buildings of the Corporation. The workplace includes cafeterias, washrooms,looker rooms,work sites, on-road municipal vehicles and personal vehicles while occupied by municipal employees during travel for the purpose of municipal business,during regular or non regular hours as required, Harassment that occurs outside the workplace but which has repercussions in the work environment,adversely affecting employee relationships,may also be defined as workplace harassment,with each situation to be evaluated on its own merit, 2,2 Harassment: means engaging in a course of vexatious comments including electronic � means of communication or conduct by an employer, someone acting for the employer or co-worker towards any other employee which is intimidating, annoying or malicious and may relate to race, ancestry,place of origin, colour, ethnic origin,,eitizenship, religion/creed, sex, sexual orientation, age,record of offences (provincial offences and pardoned federal offences),marital status,family status or handicap, against a worker in a workplace that is known or ought reasonably to be known to be unwelcome whether intended or not, j E$ -Harassment Mage t of 7 CO Orate Policy (Leading the Way ` 2,3 Harassment is further explained as follows; a) Sexual Harassment; * Sexual advance or solicitation by a person who is in a position to grant or deny a benefit to another. * Reprisal or threat of reprisal by a person in a position to grant or deny a benefit to a person who has rejected his or her sexual proposition • Unnecessary or unwanted physical contact,ranging from touching,patting or pinching to physical assault * Leering or other suggestive gestures * Unwelcome remarks,jokes, suggestions or insults about a person's physical appearance, attire or sex • Displaying, sending or communicating electronically or by any other means pornographic pictures or other offensive, sexually explicit material • Practical jokes of a sexual nature,which cause awkwardness or embarrassment • Demands or requests for sexual favours,particularly by a person who is in a position to grant or deny a benefit • Compromising invitations b) Discriminatory Harassment * Unwelcome remarks,,yokes or insults about a person's racial background, colour, { place of birth,ancestry or citizenship * The displaying of racist,derogatory or otherwise offensive material * Insulting gestures or practical jokes based on racial or ethnic grounds which cause embarrassment * A refusal to converse or woik with an employee because of his or her racial or ethnic background • Any other situation as defined by the prevailing Human Ruts Code c) Workplace Harassment * Physically abusive or aggressive behaviour such as pushing,hitting,finger pointing or standing close to the victim in an aggressive manner. • Using intimidating or disrespectful body language • Verbally abusive behaviour such as yelling, insults,intimidating comments and name calling * Spreading malicious rumours * Excluding or ignoring the victim • Making little or no eye contact with the victim and refusing to engage in common pleasantries * Sabotaging the victim's work or claiming credit for it * Reportedly blaming others for mistakes * Making false allegations in memos or other documents * A supervisor undermining the victim's efforts by setting impossible goals and deadlines and impeding an employees efforts at promotions or transfers ES-Harassment Page 2 of 7 ® I Corporate Policy Leading fhe Way � i { • Persistent excessive and unjustified criticism and constant scrutiny by a supervisor 2.4 Examples that do not constitute Workplace Harassment,providing they are undertaken without malice or intent to intimidate or undermine; + performance reviews • work assignments work evaluation • disciplinary measures-taken by the employer for valid reasons • normal workplace conflict that may occur between individuals,or differences in opinion between co-workers • requesting medical documentation in support of an absence fiom work 3. Policies: a) The Corporation of the Municipality of Clarington, CUPE Local 74 and the Clar7ngton Fire Fighters Association,Local 3139 supports and recognizes their obligations regarding the right for every employee to work in a harassment free environment, as specified in the prevailing Ontario Hyman Rights Code and the Occupational Health & Safety Act. b) In keeping with its legal and social responsibilities as an employer,the management of the Corporation shall treat any complaint of harassment as a serious matter. c) No employee shall be harassed because of race,ancestry,place of origin, colour, ethnic origin, citizenship,religion, creed,sex,sexual orientation, age,record of offences (provincial offences and pardoned federal offences),marital status,family status or disability. d) A spirit of fairness to both parties trust guide the proceedings. This includes the respondent's right to know both the allegations and the accuser and'the rights of both parties to a fair and impartial investigation and possibly a hearing. e) Confidentiality will be maintained to the best of management's ability.Any employee who is the subject of a complaint shall be informed of the complaint as soon as reasonably possible.The complainant who wishes to seek a remedy or a sanction through this procedure must be prepared to be identified to the respondent which will be undertaken with efforts to maintain respect for all involved in the situation,All involved in the process are requested to maintain confidentially. f) This policy provides that the complainant not be compelled to proceed with the complaint unless the situation wai ants as determined by management, It further provides the complainant with the right to withdraw a complaint at any point up to the final disposition of the matter. Based on knowledge obtained,the Corporation may be required to proceed with the investigation and report without the complainant's direct involvement. E5 -Harassment Page 3 of 7 I i Corporate Policy ✓ ,�©adtng the Wiry g) The respondent is entitled to a specific disposition of the issue as appropriate to the situation and findings, h) The final result or discipline if any, enforced as a result of the complaint need not be shared with the complainant. i) Every effort must be made by all parties to stop the harassment immediately, j) Any employee may at any time throughout the process seek advice or assistance from the Ontario Human Rights Commission. 4. Procedures.- The rocedures:The Complain ant: Any person who believes he/she is being harassed by another person is advised to take the following measures: Step#1—Ask the harasser to stop; Inform the harasser that his or her behaviour is unwelcome, An individual(although he or she should know better)may not realize that he or she is being offensive, A simple chat may resolve the problem,If the person refuses to cooperate,remind him or her that such behaviour is against Municipal policy, If the employee feels uncomfortable asking the harasser to stop, assistance or intervention by Human Resources may be sought, Step#2—Keep a record of the harassment: When did the harassment start? (E.g. dates,time,locations), Whathappened?Were there any witnesses?were there any threats or reprisal?what was your response? Failure to keep a diary of the events will not invalidate your complaint.A record will, however,reinforce it, Step#3--Lodge a complaint; a) If the harassment, despite your efforts to stop it, continues,you should report the problem to your Supervisor,Department Head or a designate from Human Resources,If the offending person is the designate from Human Resources,the complaint should be taken directly to the Chief Administrative Officer or designate, If the offending person is the Department Head,the complaint shall be reported to Human Resources who will bring this matter to the CAO. If the offending person is the CAO, the Human Resources designate has the ability to advise Council in a confidential report, b) If the complaint is against a member of Council, an independent investigation will be conducted, with the report going to the CAO,who is authorized to advise Council of the independent results. c) Once the complaint is received,if verbal,Human Resources will document the events as communicated, If the compliant is in writing the date and time received will be recorded. Both parties may have a copy of the complaint,but Human Resources will retain all formal records. E5 -Harassment Page 4 of 7 Corporate Policy (Leading the way d) Where a manager or supervisor initially receives the official complaint,it is his/her responsibility to ensure that the designate from Human Resources and the Department Head is notified about the complaint as soon as reasonably possible, The designate from Human Resources is then responsible for assessment and initiation of an investigation. e) The designate from Human Resources will acknowledge receipt of a complaint as soon as reasonably possible to the Manager/Department Head/Complainant/Alleged Harasser. The Department Head and the CAO will be kept apprised of the process as to the appropriate steps throughout the process. Human Resources: Human Resources with assistance from the Health&Safety Coordinator if requested shall take the following steps; Step #I--Investigation of Complaint will be conducted by Human Resources or by Independent investigator as appropriate to the circumstances as determined by Human Resources, a) fact finding i) A confidential interview with relevant parties will be conducted to obtain information and clarify the details of the reported incident. Both parties will have an opportunity to identify witnesses or others who may be interviewed. Where witnesses are not identified, or where otherwise appropriate,co-workers or other individuals may be interviewed. All interviews will be conducted in a confidential manner. ii) The results and conclusions of the investigation will be documented after interviewing the complainant,respondent and any other relevant witnesses including co-workers if necessary. Complainant and/or respondents may be asked to verify documentation.Where appropriate and necessary,the investigator may contact the Ontario Human Rights Commission or independent investigation firms for advice or assistance. b) Preliminary findings i) Where the information revealed early in the investigation suggests a reasonable possibility of a resolution, an early settlement may be proposed prior to conducting the entire investigation. ii) Where appropriate,a meeting may be convened with the parties (either individually or collectively as appropriate)involved to discuss preliminary findings of the investigation and inform,participants of the possibility and nature of early settlement and the reasons, iii) This stage allows all parties to become aware of the tentative findings and presents an opportunity,based on the information, to resolve the matter upon agreement of all parties without further investigation. iv) Where agreement is reached and the matter deemed resolved, a summary report will be.prepared for the Chief Administrative Officer and appropriate Department Head, E5 - Harassment Page 5 of 7 I Corporate Policy Y Leading the Way Y) In situations where both parties agree on a settlement but Human Resources deem the situation could pose a risk of further action, danger or legal outcome, Human Resources will make recommendations to the CAO regarding acceptance of the proposed settlement 6r proceeding further, c) Further investigation i) Where, as a result of preliminary findings, a resolution cannot be proposed or achieved, or where the designate from Human Resources determines that file closure at this point would not be appropriate, further investigations will be conducted, d) Notification and discussion of results i) The designate from Human Resources will subsequently schedule meetings with the complainant, alleged harasser,Department Head and/or Chief Administrative Officer where necessary, to present and discuss the'findings and conclusions of the investigation, Separate meetings may be convened if necessary and all parties have a right to be represented. e) Report of Findings 1) A written general summary of the complaint and results of the investigation will be provided to the Chief Administrative Officer,Director of Corporate Services/HR,Department Head the complainant and the respondent as they are ' affected by the outcome, Documents are retained by Human Resources and detailed notes are not provided to complainant or respondent, ii) The final full report will not be released to complainant or respondent or other party involved unless extenuating circumstances dictate, or there is a legal requirement to release the report. f) Disciplinary treasures i) If there is evidence of harassment, disciplinary measures will be taken by the Department Head,in consultation with the Director of Corporate Services/HR and the Chief Administrative Officer as appropriate, Such discipline may include suspension or discharge. Documentation regarding the disciplinary action will be placed in the employees personnel file, g) Malicious complaints i) Where, as a result of an investigation,it is determined that the complaint was made maliciously—with a specific and directed intent to harm,or made in bad faith with reasonable knowledge of any intent to harm,formal disciplinary actions'may be taken against the complainant, after consultation with the Department Head,Director of Corporate Services/HR and/or CAO as appropriate. Documentation regarding the disciplinary action will be placed in the employee's personnel file. E5 -Harassment Page 6 of 7 Corporate Policy .I Leading the Way Step #2—*Preventing a Re-Occurrence a) If the complaint is found to be not supported,no documentation of the complaint will be placed in the employee file of the respondent,unless the respondent requests a letter of clearance stating the claim was unfounded be placed into their employee file.Human Resources will maintain all records. b) It is the responsibility of the Department Head and Supervisors to make all reasonable efforts to ensure that workplace harassment does not occur and that there is no retaliation for having made a good faith complaint in his or her department, The Respondent; a) Assess your behaviour seriously. Understand that even if you did not intend to offend, your behaviour has been perceived as offensive.Be aware that the test of harassment is not whether you intended to offend,but whether a reasonable person ought to have known that the behaviour,comments or conduct were unwelcome. b) Cease the behaviour that the person finds offensive or unwelcome. Failure to cease this behaviour will leave you more vulnerable to a formal complaint,which could lead to disciplinary actions, c) If you believe the complaint is unfounded,discuss the matter with your supervisor and/or Department Head or Human Resources. d) You are entitled to know the allegations against you and to have an opportunity to respond, e) Document your version of the alleged incident including times,places,what happened and any witnesses. f) Cooperate with any investigation undertaken to resolve the matter, i ES »Harassment Page 7 of 7 . I I ATTACHMENT NO. 5 TO REPORT LGL-0010-13 Corporate Policy Leading the Way t POLICY TYPE. Operational SUBSECTION: Communication/Customer Services POLICY TITLE: Freedom of Information & Protection of Privacy POLICY#: F8 POLICY APPROVED BY: Chief Administrative Officer EFFECTIVE DATE: April 30, 2007 REVISED: April 16,2013 APPLICABLE TO: All Employees 1. Purpose: To provide a corporate program for access to information and protection of privacy, particularly on how the Municipal Freedom of Information and Protection of Privacy Act (the Act)applies to information in the possession of the Municipality of Clarington. 2. Objective: The objective of this policy is to: 1. Ensure that information is made available to the public and necessary exemptions from the right of access are limited and specific. 2. Identify roles and assign responsibility regarding the use and disclosure of corporate information. 3. Commit to protecting the privacy of individuals with respect to personal information about themselves held by the Municipality and to provide individuals with the right of access to their information. 4. Establish guidelines for processing requests for information within the timeline restrictions imposed by the Act. 5. Communicate offences and liabilities as stated in the Act. 3. Definitions: 1. FOl Co-ordinator—For the purposes of this policy and related procedures,the Municipal Cleric is designated as the FOI Co-ordinator, 2. Council—For the purposes of this policy and related procedures,the terms Council, Councillor, Member of Council and Council Member shall include Mayor.' j As recommended by the Information and Privacy Commissioner F8 —Freedom of Information &Protection of Privacy Page 1 of 6 TIT Y!T- Corporate Policy Leacliazg the Way 3. Head—For the purposes of the Act, the Head is the Mayor, The powers and duties of the Head have been delegated to the FOI Co-ordinator,however, the Head still remains accountable for 'actions taken and decisions made under the Act. 4. Information and Privacy Commissioner—The Information and Privacy Commissioner is appointed by the Lieutenant Governor in Council. The Commissioner is an officer of the Legislature and is independent of the government. The Commissioner hears appeals of decisions made by Heads of institutions, issues binding orders, conducts privacy investigations, and has certain powers relating to the protection of personal privacy, 5. Personal information- as defined in the Act, means recorded information about an identifiable individual, including, (a)information relating to the race, national or ethnic origin, colour, religion, age, sex,sexual orientation or marital or family status of the individual, (b) information relating to the education or the medical,psychiatric, psychological, criminal or employment history of the individual:or information relating to financial transactions in which the individual has been involved, (c) any identifying number, symbol or other particular assigned to the individual, (d) the address, telephone'number,fingerprints or blood type of the individual, (e) the personal opinions or views of the individual except if they relate to .another individual, (f) correspondence sent to an institution by the individual that is implicitly or explicitly of a private or confidential nature, and replies to that correspondence that would reveal the contents of the original correspondence, (g) the views or opinions of another individual about the individual, and (h) the individual's name if it appears with other personal information relating to the individual or where the disclosure of the name would reveal other personal information about the individual. 6. Sensitive Information—means privileged or proprietary information that only authorized people are allowed to see which includes but is not limited to personal information and that is therefore not accessible to everyone. i.e. personal or confidential information. 7Record—Any information, however recorded,whether in printed form, on film,by electronic means or otherwise, and includes correspondence, memoranda, books,plans, F8 —Freedom of Information&Protection of Privacy Page 2 of 6 Corporate Policy Leading the Way maps, drawings, diagrams,pictorial or graphic works,photographs, films, microfilms, sound recordings, videotapes,machine-readable records. 8, Request, Formal—A request for access to or copies of a record which is submitted in writing detailing the requested records, is dated and signed by the requester. This type of request should be received only after the informal request has been denied. 9. Request, Informal—A verbal request for access to or copies of a record. May also be referred to as an over-the-counter or routine request. All requests should begin informally and requesters should only formally submit a request as a last resort. 10. Routine Disclosure—The routine or automatic release of certain types of administrative and operational records in response to informal rather than formal requests. 4. Responsibilities: Councillors—General Information Councillors may have a right of access to certain types of information that would not be available to the general public if they require the information in their capacities as members of council in order to carry out duties related to that function. Council members seeking access to information that is not ordinarily available to the public should direct their request to the appropriate department head. The department head,together with the Municipal Clerk,will review the information to ensure that disclosure of information to the councillor is in accordance with legislative requirements. Depending on the nature and type of information requested, the information provided to Councillors may be stamped "CONFIDENTIAL". In these circumstances, the information in question is considered to be confidential and the council member is prohibited from releasing the information in any format, without the express authorization of council. The same is true for information provided to councillors in preparation of closed council or committee meetings. There may be circumstances in which a councillor,who is not acting within his or her official capacity as member of council, requests access to information. The Councillor may submit a formal request under the Act. In this case,the councillor has the same statu's as any member of the public when requesting this information, and staff will apply the Act in the normal manner to determine whether access may be granted. Councillors—Personal Information Where a councillor, acting in the capacity of member of council seeks access to personal information of a third party(e.g., an employee or a constituent), he or she may only obtain the personal information if disclosure is specifically authorized under section 32 of the Act. Examples of authorized disclosure are; F8 —Freedom of Information&Protection of Privacy Page 3 of 6 Corporate Policy Leading the Way 1. With consent of the individual; 2. In compelling circumstance affecting the health or safety of an individual; 3. In compassionate circumstances,to facilitate contact with the neat of loin or a friend of an individual who is injured, ill or deceased; or 4. Where disclosure to council as a whole (i.e., in council or committee meetings) or to the individual councillor is required to fulfil a duty as an officer under the Municipal Act or other legislation. Councillors who have received access to personal information or other confidential information in the performance of their duties have a responsibility to protect this information while it is in their possession. Councillors must,therefore, ensure that the privacy of the individual to whom the information relates is protected at all times, and must keep the information physically secure so as to avoid unauthorized disclosure or destruction. A Councillor's Own Records The provisions of the Act cover records that are in the custody or under the control of the Municipality of Clarington. This includes information created by a third party that has been provided to, or obtained by, the Municipality. Councillors' records are considered personal records that are not subject to the Act where they are not related to the discharge of the councillor's responsibilities as a member of council or to some aspect to council's mandate and they are not in the custody or control of the municipality. There are factors used to determine issues of custody or control. Even records relating to constituency matters may be accessible if a consideration of the factors leads to the conclusion that they are in the custody or control of the institution. Chief Administrative Officer and Department Heads 1. Actively support the FOI policy. 2. Understand the policy and the principles of the Municipal Freedom of Information and Protection of Personal Privacy Act. 3. Forward formal requests for information which are not common to their usual course of business to the FOI Co-ordinator, 4. Work closely with the FOI Co-ordinator in the processing of the formal requests to ensure compliance within legislated time requirements. FOI Co-ordinator 1. Maintain a thorough knowledge of the FOI Policy and information request procedures. I F8 —Freedom of Information & Protection of Privacy Page 4 of 6 i { U, 3 Corporate Polio Leaag the '91ay 2, Receive requests and co-ordinate these requests with Department Heads to comply with legislated time requirements, 3. Communicate with requesters to clarify requests, issue notices and respond to enquiries. 4. Communicate with Commissioner's Office to respond to enquiries and seek clarification and direction regarding appeals. 5. Seek legal advice from the Solicitor respecting disclosure decisions, as required. 6. Make decisions relative to record disclosure, 7. Determine or waive fees in accordance with Regulations. 8. Conduct FOI training and orientation. 9. Develop and maintain inter-departmental procedures relative to the FOI Policy. 5. Social Media Requirements A Municipal social media account is not considered a municipal Web site, but does represent our presence on a social media Web site hosted by a third-party service provider. The Municipality is committed to protecting an individual's privacy while ensuring that the appropriate access rights are in place by efficiently and effectively managing our municipal information holdings. • Any information shared within Municipal social media accounts is subject to the provisions of the Municipal Freedom of Inf. ormatiora and Protection of PfivacyAct and/or a legal discovery requests. This means that the social media information may be accessed and disclosed in response to a request under the act or a legal proceeding. • To protect your own privacy and the privacy of others, employees shall not include personal information in your comments or any other content you post within a Social Media account registered to the Municipality. Personal information includes home addresses and telephone numbers, photographs containing images of identifiable individuals, and any other information consisting of personal information as defined within this document. Should you have any questions about any information privacy or access rights, as explained in this protocol, please out the Municipal Cleric. F8 —Freedom of Information&Protection of Privacy Page 5 of 6 j Corporate PolicyLeading llie Way 6. Procedures General Every person(including Corporations)has the right to request records under the custody and control of the Municipality, The Municipality is not obligated to create a record in response to a request and the Municipality has no right to question the purpose of the request. The Act provides that information available to the public before the Act came into force must continue to be available, except personal information. Routine disclosure or usual "over- the-counter"responses to inquires should continue outside the procedures set out. Access Procedure Informal Request—Where possible, requests should be handled through the informal request process. Regardless of where or how a request is submitted, staff shall direct the request to the area of responsibility respecting the requested information. The employee is to dialogue with the requester to discuss the nature of the request and the type of record at issue with a view to determine whether the matter should be handled informally or by means of a formal request under the Act. Typically, if the request is simply for information or for an answer to a question,no specific record is desired, If a specific record sis requested,the employee shall verify that the record qualifies for routine disclosure. Otherwise,the requestor is directed to the complete a formal Application for Access/Correction of Records. Formal Request—Once it has been determined that a formal request is needed, an Application for Access/Correction of Records is to be completed. The application is available through the Municipal Cleric's Department and on the Municipality's website («ww.clarinaton.net). All formal requests are forwarded to the FOI Co-ordinator who will contact the necessary Department Head to arrange for collection of records pursuant to the scope of the request. The FOI Co-ordinator is responsible for determining disclosure. Where it is anticipated or understood that the records may be considered solicitor-client privilege,the FOI co- ordinator shall contact the solicitor for legal advice, The FOI Co-ordinator shall issue a Notice of Decision and any other required Notice to the requestor. F8 —Freedom of Information &Protection of Privacy Page 6 of 6 i ATTACHMENT NO. 6 TO j REPORT LGL-0010-13 I Corporate Policy Lenciiug the l�cryl POLICY TYPE: Operational SUBSECTION: Building/Grounds/Parldng/Egnipment—Access & Use POLICY TITLE: Use of Corporate Resources for Election Purposes POLICY#: . F110 POLICY APPROVED BY: Council EFFECTIVE DATE: January 27,2010 REVISED: January 27,2010 APPLICABLE TO:. All Employees 1.Purpose: To clarify that Candidates are required to follow the provisions of the.i Municipal Electrons Act, 1996 and that: a No Candidate shall use the facilities, equipment, supplies, services,staff or other resources of the municipality(including Councillor newsletters and Councillor budgets)for any election campaign or campaign related activities. o No Candidate shall undertake campaign-related activities on Municipal property, except as otherwise provided for in Section 2(g) of Policy FS--Political Activities. 0 No Candidate shall use the services of persons during hours in which those persons receive any compensation from the M inicipality of Clarington. 2.Policy: a) Corporate resources and fuuiding may not be used for any election-related purposes; b) Staff may not undertake political activities(as defined in Policy F5) or as they relate to support of a position on any by-law or question being placed on a ballot,in the workplace; c) Candidates may not use any municipal or any municipally-provided facilities for any election-related purposes, which includes displaying of any campaign related signs in the window or on the premises,as well as displaying any election-related material in the office; d) hr any material prizzted or distributed by the Municipality of Clatington,Members of Council are not permitted to: i. Illustrate that an individual(either a Member of Council or any other individual)is a candidate registered in any election; ii. Identify where they will be running for office; or iii. Profile or make reference to candidates in any election, FI 10—Use of Corporate Resources for Election Purposes Page 1 of 2 i I (-� y Oto . Corporate Policy Leading the Way e) Members of Council are responsible to ensure that the content of any communications material,printed, hosted or distributed by the Municipality of Clarington,is not election- related)- Web lection- related;Web sites or domain names that are funded by the Municipality may not include any election-related campaign material; g) The Municipality of Clarington's voicemail system may not be used to record election- related messages; h) The Municipality of Clarington's computer system(hardware, software and network) may not be used to record or distribute election-related messages; i) The following may not be printed.or.distributed on any election materials or included in any election campaign related website; i. reference to any of the Municipality of Clarington's email addresses, telephone numbers or facility addresses or municipally-funded facility addresses; or ii, the Municipality of Clarington's logo,crest, coat of-arms,slogan,etc.; Exception; a link to the Municipality's election website is permitted for the purpose of providing information about the election/ 3) Photographs produced for and owned by the Municipality of Clarington may not be used for any election purpose; and k) The Municipal Clerk, or designate,shall be responsible for enforcement of this Policy, Limitation; Nothbig in this Policy shall prohibit Members of Council from performing their duties as sitting Members or interfere with their representing the interests of our residents, Implementation; This policy shall become effective immediately upon adoption by Municipal Council, 3,Appendices, None . I Fl 10—Use of Coi1)orate Resources for Election Purposes Page 2 of 2 i Attachment 4 to Report CLD-010-16 Office Consolidation of By-Law 2009-163 Ciarington The Corporation of the Municipality of Clarington By-Law 2009-163 Being a By-law to establish a Code of Conduct for Members of Council. Passed, by Council, on: November 23, 2009 Consolidated as of: December 16, 2015 Amendments: Amending By-Law Date Amendment Details 2013-096 November 4, 2013 Added Sections 2.1 & 2.2 of Schedule A Disclaimer: The following consolidated by-law is an electronic reproduction made available for information only. It is not an official version of the By-law. The format may be different, and plans, pictures, other graphics or text may be missing or altered. The Municipality of Clarington does not warrant the accuracy of this electronic version. Official versions of all By-laws may be obtained from the Municipal Clerk's Department. Page 1 of 6 i Office Consolidation of By-Law 2009-163 THE CORPORATION OF THE MUNICIPALITY OF CLARINGTON BY-LAW 2009-163 I Being a by-law to Establish a Code of Conduct for Members of Council WHEREAS section 223.2 of The Municipal Act, 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 23rd day of November, 2009. I I Page 2 of 6 Office Consolidation of By-Law 2009-163 Schedule A to By-law 2009-163 i Code of Conduct— Members of Council j 1. 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. 2.1 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 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. I I Page 3 of 6 I Office Consolidation of By-Law 2009-163 Each of the following is recognized as an exception: (a) compensation authorized by law; (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 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 out in 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; I Page 4 of 6 i I Office Consolidation of By-Law 2009-163 (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 Municipal Clerk. 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 Municipal Clerk 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 Municipal Clerk makes such a determination, he or she shall call upon the member to justify receipt of the gift or benefit. Should the Municipal Clerk 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. 2.2 No Improper 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. Page 5 of 6 Office Consolidation of By-Law 2009-163 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 member, 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. 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. Page 6 of 6