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Report To: General Government Committee
Date of Meeting: May 9, 2016
Report Number: CLD-018-16 Resolution:
File Number: By-law Number:
Report Subject: Recording of "Declaration of Interest" in Minutes
Recommendations:
1. That Report CLD-018-16 be received for information.
Municipality of Clarington
Report CLD-016-16 page 2
Report Overview -- -
This report is intended to provide background information regarding Council's request to look
into the possibility of recording "declarations of interest" other than "pecuniary interests".
1 . Background
Council approved the following Resolution #GG-194-16 arising out of the March 29,
2016 General Government Committee meeting.-
"That
eeting:"That Staff be directed to provide a report, for the May 9, 2016 General
Government Committee meeting, to consider amending the Procedural By-law
such that, if a member is declaring a conflict, that it be noted as an "Interest"; and
That Staff consider the procedure undertaken at the Region of Durham and other
municipalities."
By way of background, the Committee provided examples of the above as follows:
• When a Member has no financial/pecuniary interest in an item, but has a family
member who volunteers with the organization to which the resolution pertains.
• When a Member has no financial/pecuniary interest in an item, but is a member
of an organization to which the resolution pertains.
2. Procedural By-law
The following are excerpts from the Municipality of Clarington's Procedural By-law:
Definition -- "Pecuniary Interest" has the same meaning as the term has in the
Municipal Conflict of Interest Act, R.S.O. 1990, c.M.50, as amended or replaced
from time to time.
Section 6.5.1 states that "the Municipal Clerk, or designate, shall cause minutes to
be taken of each Meeting of Council or Committee, whether it is closed to the public
or not. These minutes shall include:........declarations of pecuniary interest."
Section 7.2 states that:
a. All Members shall govern themselves at any Meeting in accordance with
the current legislation respecting any disclosure of pecuniary interest and
participation in the Meeting. Should a Member declare a pecuniary
interest, he shall vacate the room in which the meeting is taking place.
Municipality of Clarington
Report CL®-016-16 Page 3
b. Notwithstanding Sub-section 7.2.1, when a Member declares on a
matter(s) at a Council meeting, later in the meeting when the confirming
by-law is on the floor, the Member's declaration is understood and the
Member may remain in the room in which the meeting is taking place and
participate in the vote on the confirming by-law.
3. Municipal Conflict of Interest Act
The Municipal Conflict of Interest Act does not define a pecuniary interest per se,
however Section 2 of the Act does define an "interest in common with electors
generally" as being a pecuniary interest in common with the electors within the
municipality, and further describes an "indirect pecuniary interest" as follows:
For the purposes of this Act, a member has an indirect pecuniary interest in any
matter in which the council or local board, as the case may be, is concerned, if,
(a) the member or his or her nominee,
(i) is a shareholder in, or a director or senior officer of, a corporation
that does not offer its securities to the public,
(ii) has a controlling interest in or is a director or senior officer of, a
corporation that offers its securities to the public, or
(iii) is a member of a body, that has a pecuniary interest in the
matter; or
(b) the member is a partner of a person or is in the employment of a
person or body that has a pecuniary interest in the matter.
The Act goes on to provide 11 exemptions to having an interest.
Section 5(1) of the Act describes the duty of the Member as:
"Where a member, either on his or her own behalf or while acting for, by, with or
through another, has any pecuniary interest, direct or indirect, in any matter and
is present at a meeting of the council or local board at which the matter is the
subject of consideration, the member,
(a) shall, prior to any consideration of the matter at the meeting, disclose
the interest and the general nature thereof;
(b) shall not take part in the discussion of, or vote on any question in
respect of the matter; and
Municipality of Clarington
Report CLD-016-16 Page 4
(c) shall not attempt in any way whether before, during or after the
meeting to influence the voting on any such question."
Section 6(1) speaks directly to the record of the disclosure as "every declaration of
interest and the general nature thereof made under section 5 shall, where the meeting
is open to the public, be recorded in the minutes of the meeting by the clerk of the
municipality or secretary of the committee or local board, as the case may be."
4. Municipal Act
The Municipal Act does speak to voting, in particular recorded votes. However, it
should be noted that it is very clear on a "failure to vote", in other words - abstaining.
Section 246(2) refers to the failure to vote as follows, in reference to subsection 1
regarding recorded votes:
"A failure to vote under subsection (1) by a member who is present at the
meeting at the time of the vote and who is qualified to vote shall be deemed to be
a negative vote."
5. Discussion
5.1 Record of Action in the Minutes
Staff contacted several municipalities asking how they handled similar declarations.
See Attachment 1 for the details of the results of the survey.
All municipalities are governed by the same provincial legislation and as such while their
procedural by-laws are unique to them, it comes down to semantics when recording a
declared interest under the Municipal Conflict of Interest Act.
Municipality of Clarington
Report CLD-018-16 Page 5
For example, where the Region of Durham's minutes would state:
Declarations of Interest
Councillor X made a declaration of interest under the Municipal Conflict of Interest
Act with respect to Report Y. He indicated that his son is employed by Z.
(No further reference is made during the meeting before the matter is considered.)
Clarington's minutes would state:
Disclosure of Pecuniary Interest
Councillor X declared a pecuniary interest in Report Y.
(Later in the minutes immediately before the matter is considered)
Councillor X declared a pecuniary interest in Report Y as his son is employed by Z.
Councillor X left the room and refrained from discussion and voting on this matter.
And yet, both are fundamentally recording the same action.
5.2 Abstention
Staff research concluded that no responding municipality explicitly provides for an
abstention as is referred to in Robert's Rules. As per the Municipal Act, their procedural
by-laws provide that a "no vote" is a vote in the negative.
Robert's Rule provides an expressed right to abstain, "Although it is the duty of every
member who has an opinion on a question to express it by his vote, he can abstain,
since he cannot be compelled to vote." Looking at the Municipal Conflict of Interest Act
in conjunction with the Municipal Act one can draw a conclusion that the option of
abstaining for members of Council is not so liberal and if not declared in accordance
with the Municipal Conflict of Interest Act would result in a vote in the negative.
5.3 Modifying Clarington's Traditional Method of Recording of Action
The manner in which minutes are formatted and recorded typically is based on years of
tradition. In 2015, staff recommended, and Council approved, what is now our current
Procedural By-law. There were a number of significant changes adopted at that time.
Those that were not changed were retained. Admittedly, there was no consideration
given to changing how a declaration made under the Municipal Conflict of Interest Act
would be recorded.
Municipality of Clarington
Report CLD-016®16 Page 6
As stated earlier, and as is detailed in Attachment 1 to this Report, the manner in which
a declaration is recorded is unique to each municipality. The Clerk is obligated to
record the declaration and the nature thereof as per the Act, but has no ties to
Clarington's traditional phrasing. To be clear, the phrasing could be changed to be
similar to that which the Region of Durham uses but it does not change the fact that the
declaration is made under the Municipal Conflict of Interest Act and that according to
the Act, there is only a pecuniary interest; direct or indirect. There is no harm should a
member be wrong in their declaration. Altering the phrasing does not require any
amendment to Clarington's Procedural By-law.
6. Concurrence
This report has been reviewed by Andy Allison, Municipal Solicitor, who concurs with
the recommendations.
7. Conclusion
The Municipal Conflict of Interest Act requires Members of Council to declare direct or
indirect pecuniary interests as defined in the Act, and the nature of the interest. While
there may be instances where a member believes there could be a perceived conflict,
the Act does not recognize the concept of perceived interest. According to the Act the
interest can only be direct or indirect. That said, there is no harm in being wrong in
declaring a conflict. The Act also requires the Clerk to record such interest in the
minutes. The manner in which Clarington's Municipal Clerk (or designate) records the
interest has been based on tradition. Should it be Council's desire the Clerk can modify
the phrasing in recording the declared interests while ensuring that the requirements of
the Act are maintained.
8. Strategic Plan Application
Not applicable.
r
Submitted by: f,%` ., Reviewed by:
C. Anne Gree ILle _-r'nklin Wu,
Municipal Clerk Chief Administrative Officer
Staff Contact: Anne Greentree, Municipal Clerk, 905-623-3379 ext. 2102 or
agreentree@clarington.net
Municipality of Clarington
Report CL®®01616 Page 7
There are no interested parties to be notified of Council's decision.
Attachments:
Attachment 1 — Survey of Municipalities
CAG/jg
Attachment 1 to
Municipality of Clarington Report CLD-018-16
Name of Recorded under "Disclosure/Declaration" section of Recorded when Item is Considered
Municipality Agenda
Clarington Disclosure of Pecuniary Interest Councillor X declared a pecuniary interest
in Report Y as his son is employed by Z.
Councillor X declared a pecuniary interest in Report Y. Councillor X left the room and refrained
from discussion and voting on this matter.
Region of Declarations of Interest No further note is made in the minutes.
Durham
Councillor X made a declaration of interest under the
Municipal Conflict of Interest Act with respect to Report
Y. He indicated that his son is employed by Z.
Town of Ajax Disclosure of Pecuniary Interest Councillor X restated the declaration of
interest noted at the outset of the meeting
Councillor X declared a conflict of interest with respect to and refrained from voting on this matter.
Report Y, as his son is employed by Z.
Township of Declaration of Pecuniary Interest No further note is made in the minutes.
Brock
Councillor X declared a conflict of interest with Report Y
as his son is employed by Z.
City of Declaration of Pecuniary Interest Councillor X vacated his seat due to his
Kawartha X declared a pecuniary interest to Report Y as previously declared pecuniary interest.
Lakes Councillor
his son is employed by Z and left closed session during
the discussion and vote.
Page 8
Attachment 1 to
Municipality of Clarington Report CLD-018-16
Name of Recorded under "Disclosure/Declaration" section of Recorded when Item is Considered
Municipality Agenda
Town of Milton Disclosure of Pecuniary Interest & General Nature Councillor X disclosed a pecuniary interest
Thereof and refrained from discussion and voting
on Item 19 below.
Councillor X disclosed a pecuniary interest on the
following pages with respect to Report Y, as his son is
employed by Z.
City of Declarations of Interest No further note is made in the minutes.
Oshawa
Councillor X made a declaration of pecuniary interest
concerning Report Y as his son is employed by Z and did
not participate in discussion or voting on that part of the
item.
City of Ottawa Declarations of Interest Including Those Originally Councillor X declared a potential indirect
Arising From Prior Meetings pecuniary interest on Council Agenda 15,
Item 8, Report Y, as his son is employed by
See specific Agenda Items for declarations: Report Y. Z. Councillor X did not take part in the
discussion or vote on this item.
City of Disclosure of Pecuniary Interests No further note is made in the minutes.
Peterborough
Councillor X declared an interest with Report Y, as his
son is employed by Z.
Page 9
Attachment 1 to
Municipality of Clarington Report CLD-016-16
Name of Recorded under "Disclosure/Declaration" section of Recorded when Item is Considered
Municipality Agenda
City of Disclosure of Interest Councillor X did not vote or take part in
Pickering discussion on Item 1 a) due to his noted
Councillor X declared a conflict of interest with respect to conflict of interest.
Report Y, relating to DETAILS, as his son is employed by
Z.
Councillor X did not take part in discussions or vote on
Item 1 a).
Township of Disclosure of Pecuniary Interest & Nature Thereof Note: Councillor X did not vote on this
Scugog matter but did participate in discussions not
Councillor X declared a pecuniary interest with regard to relating to the declared conflict.
the Committee of the Whole Agenda, more particularly
certain sections within item 1 a) of Community Services.
The nature of the disclosure is that as his son is
employed by Z.
City of Disclosures of Interest Councillor X left the meeting room when
Thunder Bay discussing the above.
Councillor X declared a conflict relative to Report Y as
his son is employed by Z.
Township of Disclosures if Pecuniary Interest and the General Councillor X declared a conflict of interest
Uxbridge Nature Thereof with respect to Report Y listed as Item 1 (a)
in Other Business under the Administration
Councillor X declared a conflict of interest with respect to Committee and therefore refrained from
Report Y listed as Item 1 (a) in Other Business under the discussion or voting on the matter.
Administration Committee as his son is employed by Z.
Page 10
Attachment 1 to
Municipality of Clarington Report CLD-018-16
Name of Recorded under "Disclosure/Declaration" section of Recorded when Item is Considered
Municipality Agenda
City of Disclosure of Interest Councillor X declared an interest with
Vaughan respect to this matter as his son is
Councillor X declared an interest with respect to Item 1 employed by Z, and did not take part in the
(a), Report X, as his son is employed by Z. discussion or vote on the matter.
Town of Declarations of Pecuniary Interest Having previously declared a conflict of
Whitby interest, Councillor X did not take part in
Councillor X made a declaration of pecuniary interest the discussion or vote on this matter.
under the Municipal Conflict of Interest Act pertaining to
Item 1 a), Report Y regarding DETAILS, as his son is
employed by Z. Councillor X did not participate in the
discussion or vote on the matter.
Page 11