ERIN – An updated Code of Conduct has been adopted for Erin councillors and members of town advisory committees, just as changes are coming to Ontario’s Municipal Act that will expand the role of the integrity commissioner.
Council held a special meeting on Jan. 9, with the new code as the only agenda item, in order to accommodate the schedule of Erin’s new integrity commissioner Robert Swayze.
The code bylaw was unanimously approved with no discussion of the changes, and the meeting was adjourned after six minutes – a new record for brevity according to Mayor Allan Alls.
Erin first adopted a Council Code of Ethics in 2013 and there were a number of code complaints as part of disputes among some members of council during that term.
“I was one of the instigators of this thing, and I think it serves a very good purpose,” said four-term councillor John Brennan on Jan. 9.
“There’s enough latitude in here that you don’t get tripped up on stupid stuff – like if you meet someone and they buy you a coffee. That’s not a bribe. I don’t see anything in there that’s particularly cumbersome for us to live with as public figures.”
The new code is a template used by other municipalities, with revisions by Swayze to make it specific to Erin.
Under legislation taking effect March 1, all municipalities must appoint an integrity commissioner, with expanded powers to investigate complaints.
As before, commissioners will deal with possible code violations, but now will also have the authority to conduct independent investigations into alleged violations of the Municipal Conflict of Interest Act (MCIA).
Commissioners will not be able to make a finding of guilt or impose a penalty, but if they believe an MCIA offense has been committed, they can apply directly to a judge for a determination. Previously, only an elector could bring a conflict of interest complaint to the courts.
For the first time, council members can ask the commissioner for a legal opinion on possible violations of the code or MCIA, and for advice on ethical obligations under the town’s procedures, rules and policies.
The commissioner conducts code investigations in secret, with the complainant and defendant providing evidence and arguments privately. The commissioner has access to all municipal records and can get information from other sources. Once the investigation is complete, a public report goes to council.
If the commissioner rules there has been a code violation, council must decide whether to impose a penalty. This can include a reprimand or suspension of pay for up to 90 days. Council can remove a member of a local board, but they cannot remove an elected councillor from office. They can request reimbursement of monies or the return of property, depending on the case.
For complaints about possible MCIA violations, a new provision in the Municipal Act states, “If the commissioner decides to conduct an inquiry, the commissioner may have a public meeting to discuss the inquiry.”
The act gives no guidance about the conduct of this optional meeting. When asked about it, Swayze said he has not considered whether each party would be allowed to speak, and if lawyers could question witnesses.
“The practice under the MCIA jurisdiction will be carefully considered and will evolve,” he said.
The act gives commissioners authority to disclose any information they deem necessary for a public meeting on an MCIA case.
There is now a time restriction on code complaints – they must be made within six weeks of the issue coming to the attention of the elector. No investigation or report can be conducted between nomination day and a municipal election.
If an investigation has started, but is not complete as of nomination day, the process is terminated. It cannot be revived unless the complaint is resubmitted after the election.
“The public expects the highest moral and ethical standards of conduct from members that it elects,” states the new Erin code.
“The behaviour and actions of members is expected to reflect the principles of accountability, transparency and public trust. Adherence to these standards will protect and maintain the town’s reputation and integrity.”
Like its predecessor, the new code requires members to treat fellow councillors, staff and the public with respect, to maintain the secrecy of confidential information (even after leaving office) and adhere to the MCIA, declaring any conflicts or monetary interests and removing themselves from any discussion or vote on such matters.
Members must not use confidential information or their position for personal gain or the benefit of another person. They must not accept gifts or benefits, unless covered by a list of exemptions, and must not use town property for financial gain or advantage.
Councillors must not use social media to publish anything untrue, offensive or that may constitute harassment, and must communicate decisions of council accurately, even if they disagree with them.
Last June, Erin decided not to join Wellington County and the other six local municipalities in hiring a joint integrity commissioner – currently Guy Giorno, a lawyer with the firm Fasken Martineau. He is also a high-profile Conservative strategist, having served as chief of staff to former Prime Minister Stephen Harper and former Ontario Premier Mike Harris.
Erin instead contracted Swayze as integrity commissioner. He will charge an hourly rate of $225 for investigations and reports, with no retainer or other reimbursements.
Swayze has not yet had any Erin cases, and there are no ongoing investigations under the previous code. Swayze previously served as solicitor for Markham and Vaughan, and in 2017 was appointed integrity commissioner for the Region of Peel.
He has conducted more than 50 investigations as commissioner for various Ontario municipalities, including Guelph, Oakville, Brampton and Mississauga, and is a founding member of the Integrity Commissioners Association of Ontario.
“My approach is to apply common sense to any interpretation of the Code of Conduct,” Swayze told Erin council on Jan. 9.
