Young v. Burton et al., 2011 ONMIC 1

Citation: Young v. Burton et al., 2011 ONMIC 1
Date: 2011-07-07

Notice: Municipal Integrity Commissioners provide investigation reports to their respective municipal council and, in most cases, make recommendations for imposition of penalty or other remedial action to the municipal Council. Therefore, reference should be made to the minutes of each particular municipal council to obtain information about the particular council's consideration of each report. When possible, a link to the relevant municipal council minutes is provided.

Please find below the link to the corresponding council decision. https://securepwa.oakville.ca/sirepub/mtgviewer.aspx?meetid=1310&doctype=MINUTES (see item 2)

TABLE OF CONTENTS.. 2

RECOMMENDATION.. 3

BACKGROUND.. 3

IMPROPER USE OF INFLUENCE AND TOWN RESOURCES.. 3

CANCELLATION OF MEETINGS.. 4

SOCIAL MEDIA.. 6

CONSIDERATIONS.. 7

APPENDICES.. 7

APPENDICES.. 9

Appendix A.. 9

Appendix B.. 15

RECOMMENDATION

That the report of the Integrity Officer on the investigation carried out by him as requested by Terence Young, be received.

BACKGROUND

On April 14, 2011 a formal complaint was filed by Terence Young MP that two members of Council breached the Councillors' Code of Conduct adopted by the Town of Oakville pursuant to Section 223 of the Municipal Act. The complaint requested an investigation into four alleged contraventions and as the independent Integrity Officer for the Town, I was directed by Council to prepare a preliminary report in accordance with Procedure G-GEN-009-002. This report was considered by Council at its meeting of May 16, 2011 and Council instructed me to investigate two of the four allegations, both against the Mayor. In the Council meeting I was also requested to consider any concerns I might have over the use by councillors generally of social media and whether an amendment to the Code relating to such use might be appropriate.

For the purpose of my investigation, I personally interviewed seven members of Town staff including the CAO, the chief of staff in the Mayor's office and several more by telephone. I also interviewed the Mayor and heard his response to the complaint which I presented to Mr. Young at a meeting with him. Mr. Young requested me to speak to Councillors Gittings and Knoll which I did by telephone.

I estimated that this investigation would take 30 days but was only able to meet with Mr. Young on June 17 as he was in Ottawa until then. The following sets out the matters I considered as well as my findings and advice on the three topics referred to me by Council.

IMPROPER USE OF INFLUENCE AND TOWN RESOURCES

From my interviews with staff, I have concluded that there were no media releases or other statements issued by the Town relating to the federal election. Mr. Young was not able to provide me with any evidence of the media release alleged by him to have been issued by the Mayor in support of Councillor Kahn who was running in the election against Mr. Young. My searches on the internet did not reveal any releases from the Town that did not relate to Town business. A media release was issued by Councillor Kahn and his campaign manager in 2009 which confirmed the support of the Mayor and five town councillors to his candidacy for the Liberal nomination but nothing contained in that release can be construed as asserting a Town position in federal politics. I reaffirm my verbal statement to Council that in my opinion there is nothing wrong with councillors exercising their democratic right in an election for a different level of government to support candidates and to speak at candidate meetings, including identifying their position in the Town.

On the allegation of improper use of Town resources, I quote the Chief of Staff of the Mayor's Office that "not a minute of staff time was spent on the federal election". Nothing was issued by the Town on its letterhead relating to the federal election except the postponement of the May 2nd Council meeting to May 3rd because of the election. I found no evidence of any Councillor or staff member working on the federal election or otherwise participating in it, contrary to their duty to the Town. At his request, Councillor Kahn's remuneration was suspended to coincide with the dropping of the writ for the federal election until the day after election day. He indicated in his request that he did not intend to take a leave of absence and would attend meetings as well as carrying out his other duties as Councillor during that period.

CANCELLATION OF MEETINGS

The Procedural By-law 2009-114 requires the adoption by Council of an annual schedule of meetings which is done at the beginning of each year. This schedule forms a yearly cadence for staff to follow to ensure that they have Council authority to conduct the day to day business of the Town, to interact with Council on a weekly basis, to prepare reports to committees of Council with deadlines for their filing and generally to communicate what is happening in the municipality to its citizens through the Town web site and other notifications. Important work is carried out in this way and the timetable should not be interfered with lightly.

The meeting schedule has been organized on a two week cycle generally with Planning & Development/Council ("PDC"), comprising all Councillors, meeting on Mondays and on the same night also sitting as Council to accept the recommendations of the committee of the whole. Administrative Services ("ASC") and Community Services ("CSC") Committees meet on Tuesdays with those meetings adopting recommendations which are referred to Council for final rulings on the Monday of the following week. Depending on holidays, etc., this results generally in two regular Council meetings per month except in the summer when there is one.

The Complaint from Mr. Young claims that the Mayor "cancelled three straight weeks of council meetings, including committee meetings beginning April 12th and the April 18, 2011 Council meetings, shutting down town council to the day for the last three weeks of the Federal election campaign." The federal election was held on May 2, 2011. It is Mr. Young's contention that the purpose of the cancellation was to free up time for Councillor Kahn who was running against him to campaign and for other members of council who were working on his campaign. I am not satisfied that the reading of an agenda for three meetings and attending them for a few hours, would consume so much of the councillors' time that this was the motivation for the cancellations.

In actual fact only the ASC and CSC on April 12 and Council on April 18 was cancelled with items on the agenda. The PDC was held on April 11 but the subsequent one on April 28 was cancelled by staff in accordance with by-law provisions. A site plan committee meeting, scheduled for April 12, also had no items and was cancelled by staff. Both ASC and CSC were held as scheduled on April 27th, one week before the election. Those meetings made recommendations to the Council meeting originally scheduled for the federal election day, but held the next day on May 3, 2011. I am satisfied from my interviews, that the postponement of the Council meeting for one day was viewed by staff and now by me, as a public service for people who worked and wanted to come to the meeting and vote, both only available to them in the evening.

Section 2 (2.1) (2) of the By-law provides as follows:

"Where it has been determined by the Mayor and Clerk that there are insufficient agenda items for a meeting, the Clerk shall cancel the meeting and provide public notice accordingly."

It is a joint authority between the Mayor and Clerk to cancel meetings. Normally the Town Clerk, whose secretariat division constantly monitors the filing of reports, would initiate the cancellation of a scheduled meeting for reasons of efficiency if an insufficient number of reports have been filed for consideration at the meeting. She would cancel a meeting, avoiding its attendant cost, rather than call in councillors and staff for a meeting that might last minutes. She would first check with the Mayor to ask if there is any political or other reasons why the meeting should be held.

My investigation has determined that it was the Mayor who initiated the request to cancel the meetings to be held on April 12 and 18 and the request was made to the CAO. For the Mayor and Clerk to have jurisdiction under the By-law it is required that there be insufficient agenda items for a meeting and that question will be considered below in this report. In my preliminary report I suggested that the Mayor could have done an informal telephone poll of councillors to determine whether a majority of Council was in favour. That action would not satisfy strict procedural rules, but calling a special council meeting to formally decide would not have been an efficient use of resources and I would have been critical of that. My reason for the suggestion is that it changes the criterion for jurisdiction to whether a majority of Council is in favour and not whether there are enough items for a meeting.

According to a survey done by the Clerk's department, 5 scheduled standing committees were cancelled in 2007, 8 in 2008, 6 in 2009 and 2 in 2010. Council meetings cancelled were none in 2007, 2 in 2008, none in 2009 and none in 2010. The CAO has advised me that there are several meetings held each year without sufficient agenda items to merit a meeting. He is concerned that these meetings may not be the most efficient use of staff and councilors time. He and the Clerk are monitoring this and may in the future come forward with a report recommending a change to the cycle time from 2 weeks to 3.

Mr. Young's complaint was in part, a reaction to an editorial he gave to me from the Oakville Beaver attached to this report as Appendix "B". The reports referred to in that editorial to be heard on April 12th were heard at the meetings on April 27th and the Clerk's department has estimated for me that the total time spent ultimately dealing with them was approximately one hour and fifty minutes. What the editorial misses is that a controversial report concerning taxi licenses was scheduled for the April 12th meeting on public notice to the taxi industry. Approximately 200 taxi license owners, drivers and brokerages were given two weeks written notice of this meeting and notice was also published in a local newspaper. This report related to the proprietary rights of taxi license owners and once notice was given of the meeting, it should have been held. It should have been expected that at least an additional hour or more would have been spent on that item. When this item was ultimately heard on May 10th it consumed approximately 3 hours and a recommendation was made to Council on May 16 when the report was deferred.

My investigation has also determined that the Mayor requested by E-mail that the Taxi issue be deferred to May 10th instead of April 27th for the express reason that more notice should be given. In my opinion, the industry had adequate notice of the meeting on April 12th and did not need additional notice beyond April 27th. Both the staff member responsible for the preparation of the Taxi report and the Mayor did not regard the hearing of the report as urgent. The report required the compilation of statistics across the province and was two years in preparation. However, the urgency of the issue is not relevant to whether there were sufficient items on an agenda to hold a meeting.

I must conclude that there were sufficient agenda items to hold the meetings on April 12th and the meetings should not have been cancelled without a majority of Council in agreement. Neither the Mayor nor the CAO were aware of the substantial notice of the meeting given to the taxi industry and should have been advised by staff. However, it was an error in judgement by the Mayor to initiate these requests for changes to scheduled meetings based upon insufficient agenda items. He is not the expert in agenda assembly and if he wanted to cancel meetings for whatever reason, his only option was to seek approval from a majority of Council. These actions did not advance the common good of the Town of Oakville as required of the Mayor by the Code. However, his motivation for these actions was not to benefit himself, either materially or politically and I cannot entertain recommending to Council any sanctions against the Mayor. It is hoped that this report emphasizing the importance of maintaining a regular schedule of meetings for a municipality will be sufficient to ensure that such requests do not happen again.

I regard social media as a form of communication no different from E-mails, letters, speeches, etc. In my role as Integrity Officer, I apply the Code of Conduct to all forms of communication by any member of Council or its local boards. I have spent considerable time on the internet reading postings by the Mayor and have found them all very supportive of the Town and nothing objectionable. Mr. Young has provided me with some postings which he regards as inappropriate but I have indicated that his claim of slander is better handled in the Courts. In my interviews with staff they have indicated that they are actively looking into the utilization of social media for corporate purposes and in the future may formulate policies for council to adopt so that the Town can take advantage of the enhanced communication possibilities. When that happens, Councillors and staff may be restricted in their use of this medium. I do not wish to make any recommendations which may pre-empt staff consideration of the issue but will be pleased to comment during their review.

CONSIDERATIONS

(A) PUBLIC

All reports relating to an Integrity Officer complaint are public.

(B) FINANCIAL

The cost of the investigation by the Integrity Officer from May 17, 2011 to the date of this report is $11,160.00 plus HST.

There is no impact on other departments

(D) CORPORATE AND/OR DEPARTMENT STRATEGIC GOALS

This report addresses the corporate strategic goal to be accountable

(E) COMMUNITY SUSTAINABILITY

The office of Integrity Officer addresses the accountability and transparency aspects of the Municipal Act.

APPENDICES

Appendix A – Formal complaint from Terence Young, April 14, 2011

Appendix B – Editorial from the Oakville Beaver dated

Submitted by

Robert J. Swayze
Integrity Officer