HomeMy WebLinkAboutCLD-013-14 Clarbgton REPORT
L DEPARTMENT
Meeting: GENERAL PURPOSE AND ADMINISTRATION COMMITTEE
Date: May 5, 2014 Resolution#: - y-law#:
Report#: CLD-013-14 File#:
Subject: 2014 Municipal Election — Compliance Audit Committee
RECOMMENDATIONS:
It is respectfully recommended that the General Purpose and Administration Committee
recommend to Council the following:
1. THAT Report CLD-013-14 be received;
2. THAT the Clarington Municipal Election Compliance Audit Committee Rules of
Procedure, included as Attachment 1 to Report CLD-013-14, be received for
information; and
3. THAT the draft by-law attached to Report CLD-013-14 as Attachment 2, including
the Terms of Reference, be approved,by Council.
Submitted by- ,/ Reviewed by:
7 Fa ti L. barrie, CMO lin Wu,
f Municipal Clerk Chief Administrative Officer
PLB/cag
CORPORATION OF THE MUNICIPALITY OF CLARINGTON
40 TEMPERANCE STREET, BOWMANVILLE, ONTARIO L1C 3A6 T 905-623-3379
REPORT NO.: CLD-013-14 PAGE 2
1. BACKGROUND
The Municipal Elections Act, 1996, as amended, (the MEA) requires that every
municipality appoint a compliance audit committee prior to October 1, 2014. The
mandate of the compliance audit committee is to:
a) Consider requests for a compliance audit and determine whether the request
should be granted or rejected;
b) If the request is granted, appoint an auditor;
c) Review the auditor's report and determine whether legal action should be taken;
d) May commence a legal proceeding against the candidate for any apparent
contravention; and
e) If the auditor's report indicates that there were no apparent contraventions and if
there appears that there were no reasonable grounds for the application, advise
Council. Council would then decide whether or not to recover the auditor's costs
from the applicant.
In 2010, Council approved the recommendations of Report CLD-012-10, as follows:
"THAT Report CLD-012-10 be received;
THAT the Terms of Reference for the Clarington Municipal Election Compliance
Audit Committee, included as Attachment#1 to Report CLD-012-10, be adopted;
THAT the Clarington Municipal Election Compliance Audit Committee Rules of
Procedure, included as Attachment #2 to Report CLD-012-10, be received for
information;
THAT the Municipal Clerk be directed to place an ad in the local newspapers and
on the Municipal Website, and contact the Institution of Chartered Accountants of
Ontario, the Law Society of Upper Canada, Durham Regional Police Services, and
UOIT inviting applications for appointment to the Clarington Municipal Election
Compliance Audit Committee; and
THAT the draft by-law attached to Report CLD-012-10 as Attachment #3 be
approved by Council."
As a result, Council passed By-law 2010-055 and established the first Clarington
Municipal Election Audit Compliance Committee, consisting of three appointed
members, Nancy Coffin, William John Paul Jones and Kamal Smimou, whose term will
expire November 30, 2014.
There have been no requests for a compliance audit submitted to the Clarington
Municipal Election Audit Compliance Committee at the time of writing of this report.
REPORT NO.: CLD-013-14 PACE 3
2. RECRUITMENT OF COMPLIANCE AUDIT COMMITTEE MEMBERS
Staff have begun the recruitment process for Clarington's Municipal Election
Compliance Audit Committee by advertising in the local paper, and on the municipal
website detailing the selection criteria, with a deadline of 4:30 p.m. on Friday, May 23,
2014. Additionally, staff will contact the Institution of Chartered Accountants of Ontario;
the Law Society of Upper Canada; Durham Regional Police Services; and UOIT.
It is also recommended, at the close of the application period, that all applications be
forwarded to Council for consideration, selection, and appointment. The following
selection criteria are recommended:
a) Demonstrated knowledge and understanding of municipal election campaign
financing rules;
b) Proven analytical and decision-making skills;
c) Experience working on committees, task forces or similar settings;
d) Demonstrated knowledge of quasi-judicial proceedings;
e) Availability and willingness to attend meetings; and
f) Excellent oral and written communication skills
3. REMUNERATION
The retainer fee is $200 for each of the three committee members and a per diem rate
of $250 plus mileage for attending meetings.
Other committees of Council in Clarington who receive pay are the Committee of
Adjustment and the Property Standards Committee. Although the remuneration for
these committees is significantly lower, staff believe that, given the recommended
qualifications to sit as a compliance audit committee member and the rates paid by
other municipalities, the recommended remuneration is fair and reasonable.
4. TERMS OF REFERENCE
The mandate for the compliance audit committee is outlined in section 81 of the MEA.
The term of the Committee is the same as the term of office of Council (2014 — 2018).
While the last day for compliance audit requests for the December 31, 2014 reporting
period is June 25, 2015, a by-election could result in the need for the Clarington
Municipal Election Compliance Audit Committee to sit during the term of Council.
The Municipal Clerk acts as the main contact between the Clarington Municipal Election
Compliance Audit Committee and Council. Staff administrative support to the
Committee would be supplied by the Municipal Clerk's Department.
The Terms of Reference for Clarington's Municipal Election Compliance Audit
Committee is included in the draft by-law as Attachment 2 to this Report.
REPORT NO.: CLD-013-14 PAGE 4
5. COMPLIANCE AUDIT PROCESS
The MEA requires all candidates to file with the Municipal Clerk a financial statement
(on the prescribed form) reflecting the candidate's election campaign finances. Any
eligible elector who is entitled to vote in an election may apply for a compliance audit of
a candidate's election campaign finances where they believe that a candidate has
contravened a provision of the MEA. The application for a compliance audit shall be
made to the Municipal Clerk (or the secretary of the local board), it shall be in writing
and it shall set out the reasons for the elector's belief that the candidate has
contravened the MEA and must be made within 90 days after the latest of:
(a) the statutory filing date for the candidate's financial statement;
(b) the candidate's supplementary filing date, if any;
(c) the filing date for the final financial statement under section 79.1; or
(d) the end of the candidate's extension for filing granted under subsection 80(4); if
any.
The Municipal Clerk shall forward the application to the committee within 10 days of
receipt and provide a copy to the council or local board.
The Committee must consider the application and make a decision within 30 days after
receiving the application from the Municipal Clerk as to whether it should be granted or
rejected.
The decision of the Committee may be appealed to the Ontario Court of Justice within
15 days after the decision is made and the court may make any decision the Committee
could have made.
Where the application for a compliance audit has been approved, the Committee shall,
by resolution, appoint an auditor to conduct a compliance auditor. Only auditors
licensed under the Public Accounting Act, 2004, or other "prescribed persons" may be
appointed as auditors.
The auditor shall promptly conduct the audit, determine whether the candidate has
complied with the provisions of the Act as they relate to election campaign finances,
prepare a report outlining any apparent contraventions of the Act, and submit the report
to the candidate, Council, Municipal Clerk, and the applicant.
Within 10 days of receiving the auditor's report, the Municipal Clerk shall forward the
report to the Compliance Audit Committee.
REPORT NO.: CLD-013-14 PAGE 5
The Committee shall consider the auditor's report within 30 days and may:
• Commence a legal proceeding against the candidate if the report concludes that
the candidate appears to have contravened a provision of the MEA relating to the
election campaign finances, and
• Make a finding as to whether there were reasonable grounds for the application if
the report concludes that the candidate did not appear to have contravened a
provision of the MEA relating to election campaign.
6. RULES OF PROCEDURE:
The Act requires the Municipal Clerk to establish administrative practices and
procedures for the Committee to carry out their duties. Attachment 1 to this report are
the Rules of Procedure for the Clarington Municipal Election Compliance Audit
Committee as established by the Municipal Clerk based on the Terms of Reference.
7. BY-LAW:
Section 81.1 of the Municipal Elections Act, 1996, As Amended, requires that Council
establish a Compliance Audit Committee, before October 1, 2014, for the purposes of
section 81 of the Act. Attachment 2 to this report is the draft by-law.
8. FINANCIAL IMPLICATIONS:
The Municipality is responsible for any costs resulting from the review of applications
submitted to the Clarington Municipal Election Compliance Audit Committee. These
costs include:
• Committee members' retainer (recommended $200/member)
• Committee members' per diem (recommended $250/member)
• Committee member mileage (recommended rate as per Municipality's standard
rate)
• auditor's costs to perform an audit
• costs related to the Committee's operations and activities (i.e. copying, postage,
etc.)
• legal costs related to an appeal to the Ontario Court of Justice with respect to a
decision of the Committee
• legal costs to undertake legal action against the candidate for violations of the
elections finance provisions of the MEA
While the Municipality is responsible for paying the auditor's costs of performing the
audit and all costs in relation to the Committee's operation and activities, where the
auditor's report indicates that there was no apparent contravention and the Committee
finds that there were no reasonable grounds for the application, Council is entitled to
recover the auditor's costs from the applicant.
REPORT NO.: CLD-013-14 PAGE 6
Costs for advertising the vacancies will be included as part of the normal advertisement
process.
Any costs incurred for a compliance audit during the Term of Council (2014-2018) would
be charged to the Municipal Election reserve. These costs are difficult to estimate
although, because they depend entirely on the unforeseen volume of applications.
9. CONCURRENCE: Not Applicable.
10. CONCLUSION
In order to fulfil the requirements of Sections 81 and 81.1 of the MEA, it is
recommended that the Terms of Reference, attached to the draft by-law (Attachment 2
to this report), be approved and that the draft by-law be approved by Council.
CONFORMITY WITH STRATEGIC PLAN — Not Applicable
Staff Contact: Anne Greentree, Deputy Clerk
Attachments:
Attachment 1 — Rules of Procedure
Attachment 2 — Draft By-law including the Terms of Reference
List of interested parties to be advised of Council's decision: None
Attachment 1 to
Report CLD-013-14
Draft Clarington
Municipal Election Compliance Audit Committee
Rules of Procedure
BACKGROUND
At its meeting of May 12, 2014, the Municipality of Clarington passed By-law 2014-xxx
thereby establishing the Municipality of Clarington Municipal Election Compliance Audit
Committee for the 2014-2018 Term, consisting of three members in accordance with
Sec. 81.1 of the Municipal Elections Act, 1996, as amended.
In accordance with Sec. 81.1(4), the Rules of Procedure have been established by the
Municipal Clerk of the Municipality of Clarington to ensure that the Clarington Municipal
Election Compliance Audit Committee may be able to fulfill its duties and responsibilities
in a fair, open and responsible manner.
1. Definitions:
As used in this procedure, the following terms shall have the meanings indicated:
a. Application —An application accepted by the Municipal Clerk pursuant to
s. 81(2) of the Municipal Elections Act, 1996.
b. Candidate — The Candidate whose election campaign finances are the
subject of an application for a compliance audit.
c. Chair—The Clarington Municipal Election Compliance Audit Committee Chair
selected under s. 5 of these Rules of Procedure.
d. Committee — Clarington Municipal Election Compliance Audit Committee.
e. Council —The Council of the Municipality of Clarington.
f. MEA—The Municipal Elections Act, 1996, as amended.
g. Secretary—The Municipal Clerk for the Municipality of Clarington.
2. Rules:
The rules in this procedure shall be observed in all meetings of the Committee.
1
Attachment 1 to
Report CLD-013-14
3. Matters not dealt with in the rules of procedures:
If these rules do not provide for a matter of procedure that arises during a meeting, the
practice shall be determined by the Chair and the Chair may do whatever is necessary
and permitted by law to enable the Committee to effectively and completely adjudicate
on the matter before it.
4. Meetings:
The Committee shall meet at the request of the Secretary.
The Secretary shall summon a meeting of the Committee when requested to do so in
writing by a majority of the Committee members.
Meetings of the Committee shall be held at Municipal Offices or such other location, as
the Secretary deems appropriate.
Committee meetings shall commence at a time and date to be set by the Secretary, and
shall be adjourned on a vote of the Committee.
Attendance of all Committee members constitutes a quorum at meetings of the
Committee.
Meetings of the Committee shall, subject to the exceptions found in the Municipal Act,
2001, as amended, be open to the public.
The applicant, the Candidate and, where applicable, the auditor shall be given an
opportunity to address the Committee.
Addresses to the Committee shall be no more than five minutes in length.
5. Committee Chair:
At the first meeting of the Committee, the Municipal Clerk shall call the meeting to order
and the first order of business shall be the selection of the Chair. The Committee shall
select a Chair from among its membership.
If the Chair of the Committee resigns as a member of the Committee or resigns as the
Chair of the Committee, the Committee shall appoint another member as Chair for the
balance of the term of Council.
The Chair is the liaison between the members and the Secretary of the Committee on
matters of policy and process.
The Chair shall enforce the observance of order and decorum among the Committee
members and the public at all meetings.
2
Attachment 1 to
Report CAD-013-14
6. Delegation by Committee Secretary:
The Secretary of the Committee may delegate administrative responsibilities to a
Deputy Secretary.
7. Agenda:
Before each meeting the Secretary shall provide an agenda to each member of the
Committee.
The agenda shall include a copy of any written submissions made by the applicant or
the Candidate.
The first matter of business on each agenda shall be the declaration of any conflict of
interest.
A copy of the agenda shall also be published on the Municipality of Clarington website.
8. Lack of Quorum:
If no quorum is present thirty minutes after the time fixed for a meeting of the
Committee, or the resumption of a meeting after an adjournment, or should a quorum at
a meeting be lost for a period of thirty consecutive minutes, the Secretary shall record
the names of the members present and the meeting shall stand adjourned until the next
regular meeting day scheduled by the Secretary.
9. Committee Procedures:
a) Order of Business
The Order of Business for the Agenda shall be as follows:
Meeting Called to Order
Disclosure of Pecuniary Interest
Adoption of Minutes
Matters of Business
Opening Statement
Delegation —Applicant
Delegation — Candidate, Agent, Witness
Committee Deliberation
Adjournment
Where the agenda includes consideration of more than one Application, each
application will be dealt with by the Committee in its entirety before consideration of the
next Application.
3
i
Attachment 1 to
Report CLD-013-14
b) Questions to Delegations
The Committee may, through the Committee Chair, ask questions of the applicant,
candidate or any other delegation speaking to an Application.
c) Rules of Debate
(1) Order of Speaking -When two or more Committee members wish to
speak, the Chair shall designate the member who first requested to speak
as the member who speaks first.
(2) Questions - A Committee member may ask a question only:
(a) of a member who has already spoken on the matter under
discussion;
(b) of the Chair;
(c) of an official of the Municipality of Clarington; and
(d) of any other person addressing the Committee pursuant to these
Rules of Procedure, or
(e) for the purpose of obtaining information relating to the matter then
under discussion.
(3) Voting:
a. Every Committee member present at a meeting of the Committee
when a question is put shall vote on the question, unless prohibited
by statute, in which case the fact of the prohibition shall be
recorded in the minutes of the meeting.
b. The matter put to a vote shall be in the form of a motion addressing
the matter then under consideration.
C. In the case of a tie vote, the motion or question shall be deemed to
have been lost.
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Attachment 1 to
Report CLD-013-14
(4) Motions:
a. All motions must be introduced by a mover and seconder before
the Chair may put the question or motion on the floor for.
consideration. If no member seconds the motion, the motion shall
not be on the floor for consideration and therefore it shall not be
recorded in the minutes.
b. Any Committee member may propose a motion on the matter then
under consideration which the Clerk shall record in writing.
C. After a motion is properly moved and seconded, it shall be deemed
to be in the possession of the Committee, but may be withdrawn by
the mover at any time before decision.
d. A motion to amend shall relate to the subject matter of the main
motion, shall not be received posing a direct negative to the
question, and shall be put to vote in reverse order in which the
amendments are made. Only a motion to amend an amendment to
the original motion shall be allowed and any further amendments
must be made to the original motion.
10. Notice:
Public notice shall constitute posting the Agenda on the Municipal Website.
The Secretary shall give notice of a Committee meeting to the Committee by way of
email, telephone or in writing by mail, as deemed appropriate.
Where an Application will be considered at a meeting, the Secretary shall give
reasonable notice in writing, by mail, and by telephone to the applicant and candidate of
the time, place and purpose of a meeting and of the fact that if either party fails to attend
the meeting the Committee may proceed in the party's absence and the party will not be
entitled to further notice in relation to the meeting. The written notice shall include the
content of the Application. The Candidate may respond to the Application in writing. A
written response shall be submitted to the Secretary a minimum of two days prior to the
Committee meeting at which the Application will be considered.
The Secretary will forward notice of the Committee's decision to the applicant and the
Candidate at the mailing address provided to the Secretary as required by this
procedure.
11. Committee decisions under MEA:
In accordance with s. 81(5) of the MEA, within 30 days of receipt of the Application, the
Committee will decide whether to grant or reject the Application.
5
Attachment 1 to
Report CLD-013-14
If the Committee decides to grant the Application it shall, by resolution, appoint an
auditor licensed under the Public Accounting Act, 2004 to conduct a compliance audit of
the Candidate's election campaign finances.
At the request of the Committee, the Secretary may assist the Committee in locating
and contacting available auditors to undertake the audit.
In accordance with s. 81(14) of the MEA, within 30 days of receipt of an auditor's report,
the Committee will consider the report and may commence a legal proceeding against'
the candidate for any apparent contravention of a provision of the MEA relating to
election campaign finances.
12. Grant Exceptions from Procedures:
The Committee may waive any rule of procedure in this procedure, as it considers
appropriate, to ensure that the real questions in issue are determined in a just manner.
14. Minutes:
The Secretary shall prepare minutes of each meeting of the Committee and shall
provide members with a copy of the minutes, as soon as the minutes are available.
The Committee members shall each review and sign the minutes, to confirm that the
minutes reflect the Committee's actions.
6
Attachment 2 to
Report CLD-013-14
THE CORPORATION OF THE MUNICIPALITY OF CLARINGTON
BY-LAW NO. 2014-xxx
Being a By-law to establish a
Clarington Municipal Election Compliance Audit Committee
for the 2014-2018 Term
WHEREAS section 81.1 of the Municipal Elections Act, 1996, as amended, (the Act)
requires the Council to establish a Compliance Audit Committee, before October 1,
2014, for the purposes of section 81 of the Act; and
WHEREAS the Municipality of Clarington is committed to ensuring a consistent, open
and transparent process for receiving and processing compliance audit applications,
NOW THEREFORE THE COUNCIL OF THE CORPORATION OF THE MUNICIPALITY
OF CLARINGTON HEREBY ENACTS AS FOLLOWS:
1. The Clarington Municipal Election Compliance Audit Committee, consisting of
three members, be established, as per the Terms of Reference attached to and
forming part of this by-law as Attachment 1.
2. The Clarington Municipal Election Compliance Audit Committee shall carry out its
mandate and duties in accordance with the Rules of Procedure as established by
the Municipal Clerk.
BY-LAW read a first, second and third time and finally passed this day of May, 2014.
Adrian Foster, Mayor
C. Anne Greentree, Deputy Clerk
Attachment 1 to
By-law 2014-xxx
MUNICIPALITY OF CLARINGTON
Municipal Election
Compliance Audit Committee
Terms of Reference
1. LEGISLATIVE REQUIREMENT
Section 81.1 of the Municipal Elections Act, 1996, as amended states:
Compliance Audit Committee
(1) a council or local board shall, before October 1 of an election year, establish a
committee for the purposes of section 81.
Composition
(2) The committee shall be composed of not fewer than three and not more than
seven members and shall not include,
a) employees or officers of the municipality or local board;
b) members of the council or local board; or
c) any persons who are candidates in the election for which the committee is
established.
Term of Office
(3) The term of office of the committee is the same as the term of office of the
council or local board that takes office following the next regular election, and the term
of office of the members of the committee is the same as the term of the committee to
which they have been appointed.
Role of clerk or secretary
(4) The clerk of the municipality or the secretary of the local board, as the case may
be, shall establish administrative practices and procedures for the committee and shall
carry out any other duties required under the MEA to implement the committee's
decisions.
Costs
(5) ' The council or local board, as the case may be, shall pay all costs in relation to
the committee's operation and activities.
2.0 MANDATE
The powers and functions of the Committee are set out in Section 81 of the Municipal
Elections Act, 1996, as follows:
1. Review any applications of a compliance audit of any candidate who
ran for election to the Municipality of Clarington Council, if the
application was received in accordance with the legislative
requirements.
1
Attachment 1 to
By-law 2014-xxx
2. Within 30 days of receipt of an' application requesting a compliance
audit, the Committee shall consider the compliance audit application
and decide whether it should be granted or rejected.
3. If the application is granted, the Committee shall appoint an auditor
licensed under the Public Accounting Act, 2004, or other prescribed
person, to conduct a compliance audit of the candidate's election
campaign finances.
4. The Committee will review the auditor's report within 30 days and may,
a. If the report concludes that the candidate appears to have
contravened a provision of the Act relating to election campaign
finances, commence a legal proceeding against the candidate for
the apparent contravention;
b. If the report concludes that the candidate does not appear to have
contravened a provision of the Act relating to election campaign
finances, make a finding as to whether there were reasonable
grounds for the application.
3.0 TERM
The Committee shall be established before October 1 of an election year. The Term of
Office for the Committee is the same as the Term of Office of Council (December 1 of a
regular election year to November 30, of the next regular election year).
4.0 COMPOSITION
The Committee shall consist of three (3) members appointed by Council.
The following persons are not eligible for appointment to the Committee:
® Employees or officers of the Municipality of Clarington
Members of Council
• Any candidates in the election for which the Committee is established
Should an appointed Member accept employment with the Municipality or register as a
candidate with the Municipality, their appointment will be terminated.
All Committee Members must agree in writing that they will not work/volunteer for any
candidate, provide advice to, prepare or audit the election financial statements of any
candidate for office on the Municipality of Clarington's Council or become a candidate in
the 2014 Municipal Elections and any by-elections during Council's term.
2
Attachment 1 to
By-law 2014-xxx
5.0 CHAIR
At the first meeting of the Committee, the Municipal Clerk shall call the meeting to order
and the first order of business shall be the selection of the Chair. The Committee shall
select a Chair from among its membership.
6.0 PROPOSED MEETING SCHEDULE
The Committee shall meet as needed with meetings to be scheduled by the Municipal
Clerk, in consultation with the Chair, when a compliance audit application is received.
7.0 STAFFING AND FUNDING
Staff from the Municipal Clerk's Department shall provide administrative support to the
Committee. The Municipality of Clarington shall be responsible for all associated
expenses.
8.0 MEETINGS
Meetings of the Committee shall be conducted in accordance with the open meeting
requirements of the provisions in the Municipal Act, 2001, as amended. The Clarington
website will be used to communicate the meeting notices, agendas, and minutes.
Committee meetings shall generally be held in the Clarington Municipal Administrative
Centre, although meetings may occasionally be held elsewhere in the Municipality of
Clarington if deemed necessary or appropriate by the Chair, and at the agreement of
the Committee members.
Meetings shall generally be held during the regular business hours of the Municipality of
Clarington.
9.0 REMUNERATION
$200 — Retainer fee (includes compensation for review of any background materials)
$250 — Per diem rate, plus mileage
10.0 MEMBERSHIP SELECTION
The recruitment process shall include an advertisement in the local paper, and on the
municipal website detailing the selection criteria. Additionally, staff will contact the
Institution of Chartered Accountants of Ontario, the Law Society of Upper Canada,
Durham Regional Police Services, and UOIT.
All applicants will be required to complete an application form outlining their
qualifications and experience.
3
Attachment 1 to
By-law 2014-xxx
All applications will be forwarded to Council for consideration and appointment.
10.1 Selection Criteria
The following criteria will be considered when appointing members:
• Demonstrated knowledge and understanding of municipal election campaign
financing rules;
• Proven analytical and decision-making skills;
• Experience working on committees, task forces or similar settings;
• Demonstrated knowledge of quasi-judicial proceedings;
• Availability and willingness to attend meetings; and
• Excellent oral and written communication skills.
11.0 CONFLICT OF INTEREST
Members of the Committee must abide by the Municipal Conflict of Interest Act.
Members shall not use their status on the Committee for personal or political gain.
Committee members shall have regard for the Corporate Policy addressing the use of
corporate resources during an election year.
12.0 COMPLETION CRITERIA
The mandate of the Clarington Municipal Election Compliance Audit Committee will be,
considered complete at the end of each four-year term of Council, at which time, a
successor committee shall be appointed.
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