TOWN OF NEWMARKET integrity commissioner, SUZANNE CRAIG

Citation: Di Muccio (Re), 2013 ONMIC 1 Date: 2013-02-21

REPORT OF THE INTEGRITY COMMISSIONER ON A COMPLAINT THAT A COUNCILLOR VIOLATED THE CODE OF CONDUCT BY REVEALING CONFIDENTIAL DELIBERATIONS FROM AN IN CAMERA MEETING OF THE TOWN OF NEWMARKET

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://pub-newmarket.escribemeetings.com/FileStream.ashx?DocumentId=4887 (see page 3)

TABLE OF CONTENTS

PRELIMINARY ISSUES.. 3

THE COMPLAINT. 4

THE RELEVANT PROVISIONS OF THE CODE OF CONDUCT. 4

INTEGRITY COMMISSIONER'S JURISDICTION.. 5

RELEVANT LEGISLATION, BY-LAWS AND NEWMARKET CORPORATE POLICY. 6

WHAT IS INCLUDED IN THE MEMBERS CODE OF CONDUCT CONFIDENTIALITY RULE.. 9

BACKGROUND TO THE COMPLAINT. 12

RESPONDENT'S POSITION.. 14

ANALYSIS.. 14

CONCLUSIONS.. 18

FINDINGS.. 20

RECOMMENDATION.. 20

EXECUTIVE SUMMARY. 21

APPENDIX.. 24

Schedule A.. 24

Schedule B.. 25

Schedule C.. 29

PRELIMINARY ISSUES

[1.] On October 15, 2012, the Council of the Town of Newmarket enacted By-Law Number 2012-63 which appointed me as Integrity Commissioner "for the Corporation of the Town of Newmarket [the "Town"] for the purpose of investigating a potential breach of confidentiality and Code of Conduct by Councillor Di Muccio with respect to a park naming matter". The mandate contained in By-Law Number 2012-63 flowed from recommendations in the Joint CAO and Commissioner, Corporate Services Report - 2012-19 that an Integrity Commissioner be appointed to the Town for the purposes set out at the September 10, 2012 Special Council meeting.

[2.] The Town of Newmarket Code of Conduct (the "Code") was enacted on April 16, 2007 and amended on May 7, 2012, to rescind Part XI that related to Council Member complaints against one another. The Code contains in Part II, 2. the responsibilities of Members of Council in relation to their confidentiality obligations. Part I of the Code, provides the definitions of the terms, including the term "Confidential Information".

[3.] On October 26, 2012, I attended at the Civic Centre of the Town and met with the Chief Administrative Officer (the "CAO") and the Commissioner, Corporate Services. I also received the Code of Conduct complaint documentation and the Terms of Reference of my engagement with the Town.

[4.] The provisions contained in Part XI of the Code, detail the Formal Complaint Procedure. On October 29, 2012, under the authority of By-Law Number 2012-63, I forwarded to all Members of Council, a memorandum that outlined the formal complaint procedure that I would be following in the completion of my duties under my engagement with the Town.

[5.] The complaint alleged a breach of Part II.2 of the Code. In particular, the complaint alleges that Councillor Maddie Di Muccio (the "Respondent"), a Councillor for the Town of Newmarket, had disclosed confidential information to the public that had been acquired by virtue of her office and that was discussed during an in camera session of the Town on August 27, 2012 in relation to a park naming matter.

[6.] At a preliminary meeting with the Respondent and her legal counsel on November 8, 2012, in accordance with the formal complaint procedure that I outlined to Members of Town Council, I provided a copy of the complaint and the supporting documentation to the Respondent. In my follow up letter dated November 13, 2012, I requested that the Respondent provide me with a written response to the complaint on or before November 29, 2012.

[7.] On November 27, 2012, I received a partial response from the Respondent's legal counsel with a request for both farther clarification of the complaint and a time extension for completion of the written response. After providing further clarification to the Respondent, I set a new deadline for a response to the complaint of December 24, 2012. The Respondent complied with the deadline for submission of her response to the complaint. I received the written response to the complaint on December 18, 2012.

THE COMPLAINT

[8.] At issue in this complaint is the behaviour of Councillor Di Muccio that Town Council alleges constituted a breach of Part II.2 of the Code. In particular, the complaint alleges that Councillor Di Muccio had disclosed confidential information to the public, that had been acquired by virtue of her office and that was discussed during an in camera session of the Town on August 27, 2012, in relation to a park naming matter.

[9.] Upon a request by the Respondent's legal counsel for clarification, I provided the following:

1. In a Toronto Sun column on September I , 2012, Councillor Di Muccio (Guest Columnist) wrote about a park naming matter which had been the subject of a Committee of the Whole closed session on August 27; the matter had not yet been adopted by Council. The discussion/vote regarding the field name dedication took place at the Committee of the Whole in camera meeting on August 27, 2012, the decision of which would not become public until September 4th at Council. Councillor Di Muccio's article was printed on Sunday September 2nct. There appeared to be some disclosure of the general discussion of that closed session meeting contained in the article.

2. Via email to the Clerk, a letter dated September 3, 2012 was received with a request to circulate it to Council at its meeting on September 4th. The President of the Newmarket Redbirds Lacrosse Club, [ a named individual] indicated in the letter that the Club was "lead to understand that Council is considering naming a park bench after [a named individual]" and further "we also understand that Council is considering a proposal to give the Red birds Club $500 ...in [a named individual]'s memory." . . .In addition to the park naming, the matter of a park bench and community grant had been the subject of the closed session meeting of August 27, 2012 and any direction stemming from that meeting had not yet been adopted by Council (nor released to the public) ...

THE RELEVANT PROVISIONS OF THE CODE OF CONDUCT

[10.] Part II -Responsibilities of Members of Council, includes, but is not limited to the following and states that:

2. Confidentiality

Members shall not disclose or release by any means to any member of the public either in verbal or written form any confidential information acquired by virtue of their office except when required by law to do so;

All information, documentation or deliberation received, reviewed or taken in closed session of Council and its committees is confidential until the matter ceases to be confidential, as determined by Council (italics, my emphasis);

Members shall not permit any persons other than those who are entitled thereto to have access to information that is confidential;

Confidential information that comes to the attention of Members does not belong to them. It is property that belongs to the Town;

[11.] Part XI, clause (a) of the Code, states that "...the complainant may request the CAO to investigate the complaint and/or to arrange for a neutral third party to mediate the dispute. Pursuant to By-Law Number 2012-63, an Integrity Commissioner was appointed for the Town of Newmarket for the purpose of investigating a potential breach of confidentiality and Code of Conduct. ..". As part of the Terms of Reference of my appointment, in a Memorandum to the Mayor and Members of Council dated October 29, 2012, I outlined the formal complaint procedure that I would be following in completion of my duties in the investigation of the Code complaint (See Formal Complaint Procedure attached as Schedule A).

[12.] Part X of the Code, states that "[m]embers shall at all times encourage the public to abide by the Town's bylaw and policies''. Implied in this rule of the Code is the obligation of each Member of Council to avoid any denigration of any bylaw or policies of the Town. Healthy and respectful debate is part of the democratic foundation of a municipal Council. To willfully ignore and denigrate a rule of the Town, duly voted upon and passed by Council, the governing body of the Town, is a violation of the Code of Conduct.

INTEGRITY COMMISSIONER'S JURISDICTION

[13.] Section 223 .3 of the Municipal Act, 2001 states that:

(1) 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 eitl1er of them;

(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). 2006, c. 32, Sched. A, s. ; and

(2) Subject to this Part, in carrying out the responsibilities described in subsection (1), the Commissioner may exercise such powers and shall perform such duties as may be assigned to him or her by the municipality.

RELEVANT LEGISLATION, BY-LAWS AND NEWMARKET CORPORATE POLICY

[14.] Section 239 of the Municipal Act, 2001, contains the open-meeting rules that govern when a municipality may hold a meeting or part of a meeting in a closed session.

Meetings open to public

239 (1) Except as provided in this section, all meetings shall be open to the public. 2001, c. 25, s. 239 (1).

Subsection (2) contains the exceptions to the rule that meetings shall be held in public. Of particular relevance to this complaint is the exception found in clause b) which states that a meeting or a part of a meeting may be closed to the public if the matter being considered is...

(See Section 239 of the Municipal Act, 2001, attached as Schedule B)

[15.] Under the Municipal Act, 2001, municipalities in Ontario are required to pass by-laws that set out the rules of procedure to be followed for meetings of Committee and Council. The Municipal Act requires public notice of meetings and that all meetings be open to the public, unless they fall within prescribed exceptions (as listed above).

[16.] On January 1, 2008, the public was afforded the right under the Municipal Act to request an investigation into whether a municipality has properly closed a meeting to the public. Cities and Towns were able to either appoint their own closed meeting investigator or use the services of the Ontario Ombudsman.

[17.] Newmarket Town Council has designated the Local Authority Services (LAS), a branch of the Association of Municipalities of Ontario, as the appointed closed meeting investigator for the Town. If there is a concern that a meeting of the Town may have been held in closed session improperly, an individual may request a closed meeting investigation which is made through the Town Clerk's department and investigated by LAS.

[18.] Section 6 of the Municipal Freedom of Information and Protection of Privacy Act (MFIPPA) contains the rule that governs the exception to the right of access to government-held information in relation to in camera information

Draft by-laws, etc.

6. (1) A head may refuse to disclose a record,

(a) that contains a draft of a by-law or a draft of a private bill; or

(b) that reveals the substance of deliberations of a meeting of a council, board, commission or other body or a committee of one of them if a statute authorizes holding that meeting in the absence of the public.

Exception

(2) Despite subsection (I ), a head shall not refuse under subsection (I ) to disclose a record if,

(a) in the case of a record under clause (!) (a), the draft has been considered in a meeting open to the public;

(b) in the case of a record under clause (!) (b), the subject-matter of the deliberations has been considered in a meeting open to the public; or

(c) the record is more than twenty years old.

[19.] Newmarket By-Law Number 2008-54 ("Procedure By-Law"), as amended by By-Law Number 2009-70, is a procedure by-law put in place by the Town of Newmarket as required by section 238(2) of the Municipal Act, for governing the calling, place and proceedings of meeting for the Town.

[20.] Section 12 of the Procedure By-Law states:

12. Open and Closed Meetings

All meetings of Council and Committee shall be open to the public unless the matters to be discussed relate to one or more of the following...

Before holding a meeting or part of a meeting that is to be closed to the public, the Council or Committee shall approve a motion stating the following:

i) The fact that the meeting will be closed to the public;

ii) The general nature of the matter to be considered at the closed meeting.

(See Procedure By-Law, attached as Schedule C)

[21.] Section 14 of the Procedure By-Law states that "[m]embers shall ensure that confidential matters discussed to them during "closed" meetings are kept confidential."

[22.] Subsequent to taking office after the 2010 election, each Member of Council received a Council Orientation Package with relevant documents regarding the policies and procedures of the Town, which included but were not limited to:

• Town Media Relations Policy

• Town Council Members' Reference Manual - 13. Confidentiality

[23.] The Town Media Relations Policy states that the "pol icy is consistent with the organization's core values of accessibility, accountability, respect and integrity''. The policy identifies the Mayor as the primary spokesperson for Town Council.

[24.] Section 13. Confidentiality, of the Council Members' Reference Manual, begins by stating that:

Confidentiality

"As a government, a municipality should, as a general rule, conduct its business in an open transparent way.

However, there are occasions when the business of the municipality is conducted confidentially.

There are certain statutory and, therefore, mandatory requirements for confidential consideration of matters under certain statutes such as the Municipal Freedom of Information and Protection of Privacy Act. ...

In addition to the statutory requirements respecting confidentiality, there are other mandatory forms of confidentiality related to the protection of the Corporation....

Finally, there are matters that council is voluntarily permitted to consider confidentially under the Municipal Act. Those matters are set out in Section 239 of the Municipal Act . . .

It is extremely important for the Corporation to have each and every member of Council and Staff respect the majority decision of the Town Council as to whether a matter should be considered confidentially. Once Town Council as a whole decides to consider the matter confidentially, then, unless that decision is reversed, each and every member of Council and Staff must abide by that decision or else the Corporation could be open to significant liability claims. As well, the integrity of the Corporation, the Council, and Town Staff involved in the particular matter will be undermined.

Respect for confidentiality cannot be over emphasized. Where individual members of Council disagree with confidentiality on any matter, then, the way to set aside the confidentiality is to convince the majority of Council to reverse the decision not to take individual action to make the matter public.

Where Councillors have serious difficulty with considering a matter confidentially, and they are not able to convince the majority of Council to consider the matter publicly, then the remedy for such Councillors or staff is to withdraw from consideration of that particular matter on the basis that they cannot, in good conscience, consider the matter confidentially despite the majority will of Council. Make note though that an abstention from voting is considered a negative vote."

WHAT IS INCLUDED IN THE MEMBERS CODE OF CONDUCT CONFIDENTIALITY RULE

[25.] Many municipal codes of conduct contain the duty of a Member of Council to hold in strict confidence all information concerning matters discussed in closed or in camera meetings of Committee or Council. The prohibition of elected officials from disclosing information that was discussed in camera flows from the obligation of the municipality to adhere to various Provincial statutes that govern the disclosure of information deemed confidential. While there is no overarching general definition of what "confidential information" includes, Provincial statutes like the Municipal Act and MFIPPA contain exemptions that form the exception to the default position of disclosure of public information and open meeting discussions, the existence of which provide the reasonable assumption that Provincial statute exceptions to disclosure of public information are common-held examples of what the Legislature deems to be confidential information.

[26.] Part II. 2 of the Code contains an imperative directed to all Members of Council. It states that:

Members shall not disclose or release by any means to any member of the public either in verbal or \Witten form any confidential information acquired by virtue of their office except when required by law to do so ( bold italics, my emphasis); and

All information, documentation or deliberation received, reviewed or taken in closed session of Council and its committees is confidential until the matter ceases to be confidential, as determined by Council (bold italics, my emphasis).

[27.] Pursuant to the Town's Procedure By-Law, Council must resolve to convene into closed session by way of a motion and it is the responsibility of Council members to raise a concern if they believe that an issue that is being considered for closed meeting discussion, should be more properly discussed in open session.

[28.] Whether a Member of Council agrees or disagrees with the decision to convene the meeting into closed session, a decision by a prescribed majority of members to move a matter into closed session for discussion, deems the matter to be confidential for the purposes of the Procedure By-Law and the Code and the subject of a closed meeting discussion, until such time "as determined by Council".

[29.] In this investigation, the complaint invoked Part II. 2. of the Code as alleged contraventions by the Respondent. This rule refers to the obligation of each Member of Council to not "...disclose confidential information acquired by virtue of their office except when required by law to do so" and to maintain the confidentiality of "[a]ll information, documentation or deliberation received, reviewed or taken in dosed session of Council and its committees…until the matter ceases to be confidential, as determined by Council." This rule was included in the Code to ensure that the purpose of the Code is effectively implemented and that the outcomes of compliance are linked to the Town's Policy Statement. To have a clearer understanding of the intent of Part IL2 of the Code, it would be useful to take a closer look at the beginning of the Code. However, before we take a look at the beginning or "preamble" of the Code, we should briefly look at a few sections of the Inte1pretation Act, R.S.O. 1990 (the "Interpretation Act"). While the Interpretation Act applies to Acts of the Legislature, it may serve as a useful guide in navigating the meaning and intent of the rules of the Code.

[30.] The Interpretation Act states at:

• Section 8 that "...the preamble of an Act…is intended to assist in explaining the purport and object of the Act.";

• Section 10 that "...every Act shall be deemed to be remedial whether its immediate purport is to direct the doing of anything that the Legislature deems to be for the public good or to prevent or punish the doing of anything that it deems to be contrary to the public good, and shall accordingly receive such fair, large and liberal construction and interpretation as will best ensure the attainment of the object of the Act according to its true intent, meaning and spirit".

• Section 29(2) that "...the word 'shall' shall be construed as imperative and the word 'may' as permissive.

[31.] For the purposes of the discussion here at hand, the above paragraph on statutory interpretation (that is, how best to understand the meaning of a law), assists the reader of the Code in understanding that a rule of the Code, i.e. Part II.2. dealing with confidentiality, should be read with a view to the "preamble" of the Code and a view to the significance of words that convey the imperative and the permissive. In other words, clauses that describe what Councillors must do to be in compliance with the Code and where their behaviour is discretionary.

[32.] For the purposes of the Code discussion today, the Policy Statement and the Purpose, together form the preamble of the Code.

[33.] The Policy Statement that introduces the Code, states that:

Members of Council have the privilege of attaining elected office. That privilege carries significant responsibilities and obligations. In order to strengthen the role of Council and to enhance public trust, this Code of Conduct supplements existing provincial conflict of interest legislation and municipal by-laws that govern their conduct.

[34.] Following the Policy Statement is the Purpose of the Code. The Purpose of the Code is to ensure that:

• The decision-making process of Town Council is open, accessible and equitable;

• Decisions are made through appropriate channels of government structure;

• Public office is not to be used for personal gain;

• Newmarket residents have confidence in the integrity of their local government;

• The conduct of Members of Council is of the highest standard; and

• There is fairness and respect for differences and a duty to work together for goodwill and common good.

[35.] The Municipal Councillor's Guide ("Councillor's Guide, published by the Ministry of Municipal Affairs and Housing) has attempted to assist elected officials at the municipal level to understand their role as municipal councilors. This document, in addition to the Policy Statement and Purpose of the Code, farther assist in understanding the meaning and parameters of the Code confidentiality rule.

[36.] Individual councillors do not have any decision making authority conferred in legislation. However, although not listed in the Municipal Act, the Councillor's Guide, states on page 3 that "[a Councillor] may attract [...] inquiries because of your background and interests, or the issues in your particular ward ...'. The Guide goes on to caution Members of Council to "…be sure to familiarize yourself with any policies or protocols that your municipality may have in place to minimize liability or for other specific reasons. (bold and italics, my emphasis). When a Member of Council is elected, they cease to represent a particular group or matter of interest and become one part of the governing body recognized by the Municipal Act, as the decision-maker of the municipality. There are varying views on the role of a municipal councillor, however the fact remains that there is no statutory role conferred on individual members of Council in the Municipal Act. Sections 224, 225, 226.1 and 227 of the Municipal Act, define the statutory roles of Council, Head of Council, Head of Council as chief executive officer and that of Staff. An individual Member of Council has no statutory decision-making power except as part of the board of directors of the corporation: Council as a whole.

BACKGROUND TO THE COMPLAINT

[37.] The Respondent, Councillor Di Muccio, is a Newmarket Town Councillor for Ward 6. She was elected for a first term in 2010.

[38.] Sometime in the spring of 2012, the Respondent entered into discussions with the Newmarket Redbirds Lacrosse Club regarding her bringing forward a motion at Newmarket Town Council to have the Town consider re-naming the Ray Twinney Complex I Sports Field ("Sports Field I "] to the name of a teen who had passed away in the community of Newmarket on May 21, 2008, on the Ray Twinney Complex I sports field in a tragic accident during a sports series.

[39.] At the April 16, 2012 open session Council meeting, the Respondent put forward two Notices of Motion. The second Notice of Motion was to "[r]equest a staff report on the possibility of the renaming of the Ray Twinney Complex 1 Sports Field to the [named individual] Memorial Field". At the time of the introduction of the Notice of Motion, the Respondent started to give background on the matter, however her discussion was truncated by the Chair of Council who advised that the matter would be discussed, as appropriate, when the staff report was brought forward.

[40.] At the May 7, 2012 open session Council meeting, Resolution R7-2012 ("R7-2012") was held for separate discussion by the Respondent. R7-2012 was a resolution to have the Town of Newmarket re-name the Ray Twinney Complex 1 sports field to the [named individual] Memorial Field, and that a plaque in his honour be placed with the same words of dedication that are found on his foundation website.

[41.] During the discussion of R7-2012, a Member of Council raised the issue that, in the past, the Town staff process that had been consistently used in discussing the merits of various naming options for park naming matters, was that of holding the discussion in camera. The Member went on to state that "when we have dealt with an identifiable individual, it has been in camera ...But the name is already out ..."

[42.] A referral motion was put forward by a Member of Council that R7-2012 "be referred to staff to bring back a report to a Committee of the Whole (Closed Session) meeting within +/- 60 days''.

[43.] R7-2012, originally listed on the May 7, 2012 closed session agenda, was not discussed in closed session, however, as it had already been referred to staff to bring back a report to Committee of the Whole (Closed Session), R7-2012 was not discussed in closed session on May 7, 2012. There was no substantive discussion of R7-2012 at the 2012 Council meeting and the matter was held in abeyance, to be discussed in camera, after receipt of a staff report to be completed within 60 days.

[44.] At the August 27, 2012 Committee of the Whole (Closed Session), the Community Services -Recreation and Culture Report # 2012-55 ("Report 2012-55) was tabled in closed session. At this meeting, a motion was voted on and approved without debate, to convene in camera to discuss Report 2012-55. As a result, Town Council adopted the decision to move the Committee meeting in camera to discuss the Report 2012-55 which presented recommendations to Council regarding the park naming matter. At the end of the August 27th meeting, the park naming matter remained outstanding as an in camera discussion point.

[45.] On September 1, 2012, an article authored by the Respondent as Guest Columnist, was published in the Toronto Sun. In the article, the Respondent discussed the motion that she brought forward at the May 7th meeting, the substance of which had been discussed at the August 27th in camera meeting. Her article also included the responses that some Members of Council had made at the open session meeting of Council, in addition to their comments made during the in camera discussion of the park naming matter. In fact, her Toronto Sun column stated that "[i]n spite of telling residents openly that they supported re-naming the sports field, they voted against it, hence wanting to have the discussions outside of the public realm''. By specifically naming certain Members of Council as being in favour of re-naming the field and then stating that they '[i]n spite of telling residents openly that they supported [it]...they voted against it", the Respondent's article inferred the substance of the in camera discussion, in particular in relation to the discussions of those Members of Council named in her article.

[46.] At the September 4, 2012 Council meeting, included on the Addendum to the Council Agenda was an addition to the Closed Session agenda items. The addition to the Closed Session agenda items was an email correspondence from the President of the Newmarket Redbirds Lacrosse Club to Mr. Andrew Brouwer, Director of Legislative Services/Town Clerk. In the email, the President of the Lacrosse Club made mention of some information regarding the park­ naming matter, that had not, at that time, been made public.

[47.] Towards the conclusion of the September 4, 2012 Council meeting, a discussion began regarding the rules that govern voting on a matter that was subject of an in camera meeting. After Council received clarification from the Commissioner of Corporate Services, the Mayor also provided clarification on the appropriate time for an item that was discussed in camera, to become a matter of public discussion.

[48.] During the Sept 4th meeting, several members of Council stated their unwillingness to participate in in camera discussions, until the matter of confidentiality was clarified at the upcoming Special Council meeting of September 10, 2012.

[49.] The September 4, 2012 meeting concluded with the motion directing:

"THAT item 5 of the August 27, 2012 Committee of the whole (Closed Session) Minutes regarding a Personal Matter be deferred to a Special Committee of the Whole meeting on September I 0, 2012".

[50.] At the September 10, 2012 Special Committee of the Whole (Closed Session), Council resolved: to take no further action regarding the Park Naming at the request of the family. to receive the Joint CAO and Commissioners Report regarding the potential breach of the Confidentiality/Code of Conduct; and that staff be directed to retain an Integrity Commissioner to investigate a potential breach of confidentiality and Code of Conduct by Councillor Di Muccio.

RESPONDENT'S POSITION

[51.] In responding to the complaint, the Respondent advanced a number of justifications for her alleged actions. She contends:

1. That Council did not take a formal vote at the August 27, 2012 Committee of the Whole meeting and did not make a formal decision on the park naming matter, therefore, "there was no real revelation of any decision, as there was no actual decision rendered";

2. That her action was not a wrongful act but rather one that protected the integrity of her office. She states that her obligation is first and foremost to the public and that the public had a right to know what took place at the in camera session;

3. That she "...did not reveal any particular names or facts, but only informed the public of the general consensus of the conclusion of such meeting that Council itself planned to reveal on September 4, 2012 ...";

4. That "...it is inappropriate to simply imply that it was Councillor Di Muccio who disclosed such information to ...the president of the Newmarket Redbirds Lacrosse Club";

5. That to use the quote from her article as an admission that she knew she was breaching the rules of confidentiality, is a manipulation of her words;

6. That Newmarket Council was accusing her of breaching an oath of confidentiality that Council itself had previously breached and that if Council allowed Councillors in the past, to publicly speak about in camera discussions, it would be unfair to enforce the rules now against Councillor Di Muccio.

ANALYSIS

[52.] In relation to the Respondent's position that there was no unlawful disclosure of confidential information, because Council did not actually render a decision at the August 27, 2012 in camera meeting, we are reminded that Part II of the Code is entitled ­ Responsibilities of Members of Council and clearly states that Members are required to hold confidential;

All information, documentation or deliberation received, reviewed or taken in closed session of Council and its committees is confidential until the matter ceases to be confidential, as determined by Council (bold and italics, my emphasis)

Whether or not a matter is voted on in camera, is irrelevant to determining a breach of the obligation to maintain confidentiality until the matter is no longer deemed confidential, by a decision of Council. Further, the Town's Procedure By-Law at section 13 states that no vote shall be taken at a closed meeting unless the meeting is closed pursuant to one of the exceptions found in section 239 of the Municipal Act and that the vote is procedural or to give instructions of staff. The public's right to know is enshrined in the provisions of access to information in MFIPPA and the default of open meetings conferred by the Municipal Act. The Legislature recognizes that the limitation placed on the public's right to know should be limited and specific and in fact, such specific limitations are found in section 239 of the Municipal Act, which is reiterated in section 12 of the Town's Procedure By-Law.

[53.] As stated in an article in the Municipal and Planning Law Reports¹, "[t]he rationale to exclude the public was to allow discussion to take place in an environment that encouraged fulsome debate without the scrutiny of the public or the prying lens of the media, so long as the decisions themselves were made in an open session." However, the 2006 amendments to the Municipal Act, brought about the requirement for all municipalities in Ontario to have mandatory procedural by-laws to ensure the transparency in meeting management. It is inexact to assert, as has the Respondent, that the "public has a right to know what took place at the in camera session''. More accurately, it can be stated that with the advent of the Close Meeting rules, relying on the Supreme Court of Canada's ruling that "[t]he democratic legitimacy of municipal decisions does not spring solely from periodic elections, but also from a decision-making process that is transparent, accessible to the public and mandated by law"², the public has a right to request an investigation of whether a municipality has complied with section 239 of the Municipal Act or a procedure by-law under subsection 238(2) in respect of a meeting or part of a meeting that was closed to the public.

[54.] The office of a municipal councilor has statutory relevance only insofar as a Member of Council is part of the decision making body of the Town: Council. As mentioned above, when a Member of Council is elected, they cease to represent a particular group or matter of interest and become one part of the governing body recognized by the Municipal Act, as the decision-maker of the municipality. There are varying views on the role of a municipal councillor, however the fact remains that there is no statutory role conferred on individual members of Council in the Municipal Act.

[55.] Whether or not names are disclosed ( this was not an issue in this particular matter before Committee, as the item had originally come before Council in open session, naming the suggested recipient of the memorial dedication), is not the only criteria that will determine whether a matter is a personal matter about an identifiable individual. The park naming matter in this instance was a very sensitive issue.

[56.] Under provincial privacy legislation:

Section 2(1) defines "Personal Information" to mean recorded information about an identifiable individual, including:

(g) the views or opinions of another individual about the individual, and

(h) the individual's name where 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.

Section 14 (3), states that a disclosure of personal information is presumed to constitute an unjustified invasion of personal privacy if the personal information,

(g) consists of personal recommendations or evaluations, character references or personnel evaluations.

Section 32 states an institution shall not disclose personal information in its custody or under its control except in accordance with section 14 or other prescribed specific circumstances.

In relation to all the above-noted sections of MFIPPA, it is important to note that the privacy legislation applies to all municipalities for the purpose of protecting the privacy of individuals with respect to personal information about themselves held by institutions. Therefore, the public's right to know must be appropriately balanced according to the legislation by the Town' s obligation to protect the privacy of and about the individual.

[57.] The fact that the name was "out there" did not change the fact that the discussion around the park naming, the recommendations of staff and the application of the Town's Park Naming Policy, would entail a detailed discussion about the individual. As a result, in addition to his name, personal matters about this identifiable individual would be the subject of the in camera discussion.

[58.] When the staff report regarding options for the parking naming matter was introduced, Town Council was in camera. A motion to convene into closed session was voted on and adopted unanimously. To the recollection of all those to whom I have spoken, there was no call for a reconsideration of the decision to go into closed session. Further, at the end of the August 27, 2012 Committee meeting, the matter was not resolved and therefore, the confidentiality of the item continued until the matter ceases to be confidential, as determined by Council.

[59.] While this investigation did not obtain any information on how the President of the Newmarket Redbirds Lacrosse Club received information that was subject of an in camera discussion, and while I agree that it would be unfair to simply imply that it was the Respondent that disclosed such information to the Lacrosse Club President, it is duly noted that the President is the spouse of the Respondent and by her own admission, the Respondent is a volunteer with the Newmarket Lacrosse Club.

[60.] The Respondent states that to use the quote from her article as an admission that she knew she was breaching the rules of confidentiality, is a manipulation of her words. In her response to the complaint, the Respondent states that "[a]s a columnist (and not a journalist) writing for a tabloid outlet, it is necessary for her writing style to be rhetorical, hyperbolic and attention grabbing". While every media outlet has its own policies and procedures, in discussions with a media subject matter expert, I was advised that, generally, a Guest Columnist is given greater latitude on the style and content of their writing and opinion than other reporters. Through the words of her September 1, 2012 article, the Respondent states "[a]s a councillor, I took an oath to maintain confidentiality of closed door meetings". This statement, I dare say, is neither rhetorical nor attention grabbing, but rather, the full truth for an elected official.

[61.] While it is laudable that the Respondent acts on behalf of the public and views her obligation as a councillor to be first and foremost to the public, this view is not mutually exclusive to upholding the confidentiality rules contained in the Town's Procedure By-Law, the rules of the Municipal Act and the Municipal Freedom of Information and Protection of Privacy Act. Rather, as a Member of Council, in order to conscientiously act on behalf of the public and uphold the oath of office, a councillor is necessarily required to obey the rules contained in all of the governing legislation of the municipality. Further, during the Councillor Orientation in November 2010, section 13 of the package entitled "Confidentiality" was provided to newly elected and returning Councillors to inform them that the remedy for those having serious difficulties with considering a matter confidential, "is to withdraw from consideration of that particular matter on the basis that they cannot, in good conscience, consider the matter confidentially despite the majority will of Council." This above noted process is the appropriate solution for a councillor who, acting on behalf of the public as one member of the deciding body known as Council, believes that a matter should not be held in camera

[62.] For a Member of Council to be fully aware that a matter is before Council in camera, to have participated in the unanimous vote to convene the meeting in camera, and then to have discussed any part of what was discussed at that meeting publicly by way of a newspaper article, is to have disclosed, at least some of the substance of what was discussed in camera, in public.

[63.] As succinctly pointed out by Professor David Mullan, the first municipal Integrity Commissioner in Ontario in one of his earlier complaint reports;

"[c]ouncillors cannot find justification for releasing confidential information lo the Press in their own conviction that their colleagues have erred in going in camera. [.. ,] Just because (with justification) [they] felt that the motion was out of order was not a basis for taking the law into [their] own hands."

CONCLUSIONS

[64.] The Code is a document that was unanimously adopted by Newmarket Town Council as an agreement to a common understanding of rules regarding behaviour of individual Members of Council. Based on the information that I have received during this investigation, I make the following conclusions:

[65.] To be clear, this investigation and my powers conferred under By-Law 2012-63 do not extend to cover the merits of previous allegations of disclosure of in camera information regarding the Respondent. However, the efficacy of the Town's Procedure By-Law and policy governing confidentiality, will be determined by rules that are clearly defined and consistently applied to all Members of Council.

[66.] When evaluating the integrity and ethical conduct of a Member of Council, my role is to apply the rules of the common basis for acceptable conduct to the facts gathered throughout the investigation. When making decisions on acceptable conduct, Members of Council are to follow the rules of the Code, the policies and procedures of the municipality and the statutes in force and applicable to them.

[67.] In explaining her actions subject of this investigation, the Respondent has stated that in the past, Council allowed other councillors to publicly speak about in camera discussions and that she perceives the apparent arbitrary enforcement of the rules now against her to be unfair. I reiterate that the subject of previous alleged conduct of the Respondent or other Members of Council and in camera discussions is not within the mandate of my appointment. However, whether confidentiality breaches were not enforced in the past, does not justify non-compliance with the rules for the purposes of this complaint investigation.

[68.] Members of Council are held to a high standard of behaviour. This is sometimes perceived as unfair or at odds with their civic duty and obligations to their constituents. However, the Code, the agreed up common basis for acceptable conduct, states that Town of Newmarket Members of Council "have the privilege of attaining elected office [...] and that privilege carries significant responsibilities and obligations ...[including] ...fairness and respect for difference and a duty to work together for goodwill and common good".

[69.] If a Member of Council finds fault in the decision of Council, whether that be a decision to go into closed session or some other procedural matter, there are appropriate and lawful remedies available to the Member. First and foremost, requesting a recorded vote to demonstrate one's disagreement with the decision to go into closed session and withdrawing from the portion of the meeting held in camera. While I can appreciate the challenging situation that the Respondent believed to have faced (voting with her conscience or respecting and abiding by the rules that she took an oath to uphold), to borrow a phrase used by Professor Mullan, this "was not a basis for taking the law into [her] own hands."

[70.] I have carefully reviewed the responses of the Respondent and find that while she appears to demonstrate a desire to be part of a transparent governance structure at the Town of Newmarket, she has not established either that she was unaware of how to raise her disagreement with discussing the park naming matter in camera or that the Town discussed the matter subject of the August 27th meeting, unlawfully.

[71.] In making my decision, I took into consideration that the Town has in place a Procedure By-Law that contains rules regarding in camera meetings, in addition to the fact that the Town's senior officials provided information sessions to newly elected Members of Council on rules pertaining to the exercise of their duties, including those rules that relate to confidentiality.

[72.] Though I accept the Respondent's position that rules that govern the behaviour and actions of Members of Council should be consistently applied to all Members of Council, the ambit of my investigation did not extend to an analysis of the merits of any alleged actions of any other Member of Council. Further, I reiterate that any prior alleged breaches of the rules of the Code of Conduct would not serve as a justification for the Respondent to have breached a rule of the Code in the complaint at hand.

[73.] Several orders of the Information and Privacy Commissioner of Ontario (IPC) have upheld the position that a breach of section 6(1)(b) of the municipal privacy legislation requires not only the disclosure of the subject of in camera deliberations but also the disclosure of the substance of the deliberations that took place at the in camera meeting. I find that while the subject of the August 27th meeting may have been "out there" to use the phrase of one Member of Council, some of the substance of the deliberations held at the meeting were disclosed by the Respondent through the inclusion of this information in her Guest Column article and the substance of the August 27th deliberations were not "out there" until it became subject of the Councillor's article.

[74.] Finally, through my informal inquires to both the Office of the Ombudsman of Ontario and the Local Authority Services Limited (LAS), a subsidiary of the Association of Municipalities of Ontario, I have confirmed that any member of the public, which includes a Member of Council, may initiate a request for a closed meeting investigation if they believe that a meeting of a municipal council was unlawfully closed to the public.

FINDINGS

[75.] I find that Councillor Di Muccio did breach Part II.2. of the Code of Conduct through her disclosure in the September 2012 Guest Columnist article, of some of the substance of the deliberations of the August 27, 2012 in camera meeting.

[76.] I find that Councillor Di Muccio knew or should have known that any discussion of the substance of the August 27th in camera meeting was a violation of the confidentiality provisions of the Code of Conduct and that she was well aware that she may have been in violation of the rules of the Procedure By-Law and the Code of Conduct when the matter went into closed session by a unanimous vote of Council.

[77.] It is evident that Councillor Di Muccio is focused on and passionate about her role as Ward 6 Councillor for the Town of Newmarket. However, her disregard for the observance of the rules around confidentiality demonstrates an unacceptable unwillingness to exercise her role according to the existing rules of the Town of Newmarket.

[78.] Given the information that I have obtained throughout this investigation, I cannot conclude that Councillor Di Muccio's actions in contravention of this Code were committed through inadvertence or an error of judgement made in good faith. However, taking into consideration comments received by third parties in relation to the effects of disclosure on affected parties, I believe that there are mitigating circumstances surrounding Councillor Di Muccio's actions sufficient to not warrant a full application of the penalties available under the Code.

RECOMMENDATION

[79.] I recommend that the Town of Newmarket Council:

i) issue a formal Reprimand to Councillor Di Muccio in relation to her violation of the confidentiality provisions of the Code of Conduct; and

ii) consider effective ways to ensure that Council Members receive education on in camera meeting rules. These rules should be applied consistently to all Members of Council.

Respectfully submitted by:

Suzanne Craig February 21, 2013

Integrity Commissioner

EXECUTIVE SUMMARY

This report presents the findings of my investigation into the complaint against Councillor Maddie Di Muccio, Ward 6 Councillor for the Town of Newmarket in connection with her alleged disclosure of confidential information to the public, that had been acquired by virtue of her office and that was discussed during an in camera session of the Town on August 27, 2012, in relation to a park naming matter.

The complaint alleged that Councillor Di Muccio contravened Part II.2 of the Code of Conduct for the Town of Newmarket, which deals with the rules of Confidentiality and in particular, states that Members shall not disclose or release by any means to any member of the public either in verbal or written form any confidential information acquired by virtue of their office except when required by law to do so; and that all information, documentation or deliberation received, reviewed or taken in closed session of Council and its committees is confidential until the matter ceases to be confidential, as determined by Council (italics, my emphasis).

This investigation took into consideration the Confidentiality provisions of the Code of Conduct, and relevant legislation, including but not limited to the Municipal Act 2001, the Municipal Freedom of Information and Protection of Privacy Act, and the Newmarket By-Law Number 2008-54, as amended by By-Law Number 2009-70.

The investigation took particular care in looking at the Town's motion to move into closed session on August 27, 2012, to discuss a park naming matter, by virtue of a unanimous vote of Council.

It came to light during the investigation that subsequent to taking office after the 2010 election, each Member of Council received a Council Orientation Package with relevant documents regarding the policies and procedures of the Town, which included but were not limited to the Town Media Relations Policy and the Town Council Members' Reference Manual - 13. Confidentiality.

At the April 16, 2012 open session Council meeting, Councillor Di Muccio put forward two Notices of Motion. The second Notice of Motion was to "[r]equest a staff report on the possibility of the renaming of the Ray Twinney Complex 1 Sports Field to the [named individual] Memorial Field". At the time of the introduction of the Notice of Motion, the Councillor started to give background on the matter, however her discussion was truncated by the Chair of Council who advised that the matter would be discussed, as appropriate, when the staff report was brought forward.

At the May 7, 2012 open session Council meeting, Resolution R7 -2012 ("R7-2012") was held for separate discussion by Councillor Di Muccio. R7-2012 was a resolution to have the Town of Newmarket re-name the Ray Twinney Complex 1 sports field to the [named individual] Memorial Field, and that a plaque in his honour be placed with the same words of dedication that are found on his foundation website.

During the discussion of R7-2012, a Member of Council raised the issue that, in the past, the Town staff process that had been consistently used in discussing the merits of various naming options for park naming matters, was that of holding the discussion in camera. The Member went on to state that "when we have dealt with an identifiable individual, it has been in camera ...But the name is already out..."

A referral motion was put forward by a Member of Council that R7-2012 "be referred to staff to bring back a report to a Committee of the Whole (Closed Session) meeting within +/- 60 days".

At the August 27, 2012 Committee of the Whole (Closed Session), the Community Services - Recreation and Culture Report # 2012-55 ("Report 2012-55) was tabled in closed session. At this meeting, a motion was voted on and approved without debate, to convene in camera to discuss Report 2012-55. As a result, Town Council adopted the decision to move the Committee meeting in camera to discuss the Report 2012-55 which presented recommendations to Council regarding the park naming matter. At the end of the August 27'11 meeting, the park naming matter remained outstanding as an in camera discussion point.

On September 1, 2012, an article authored by Councillor Di Muccio as Guest Columnist, was published in the Toronto Sun. In the article, the Councillor discussed the motion that she brought forward at the May 7th meeting, the substance of which had been discussed at the August 27th in camera meeting. Her article also included the responses that some Members of Council had made at the open session meeting of Council, in addition to their comments made during the in camera discussion of the park naming matter.

As part of this investigation, I examined meeting minutes, telephone and email logs, and other relevant documentation in addition to conducting interviews with members of Town staff and other relevant third parties.

I found that whether a Member of Council agrees or disagrees with the decision to convene a meeting into closed session, a decision by a prescribed majority of members to move a matter into closed session for discussion, deems the matter to be confidential for the purposes of the Town's Procedure By-Law and the Code and the subject of a closed meeting discussion, until such time "as determined by Council".

The fact that the name was "out there" did not change the fact that the discussion around the park naming, the recommendations of staff and the application of the Town's Park Naming Policy, would entail a detailed discussion about the individual. As a result, in addition to his name, personal matters about this identifiable individual would be the subject of the in camera discussion.

When the staff report regarding options for the parking naming matter was introduced, Town Council was in camera. A motion to convene into closed session was voted and adopted unanimously. To the recollection of all those to whom I have spoken during the investigation, there was no call for a reconsideration of the decision to go into closed session. Further, at the end of the August 27, 2012 Committee meeting, the matter was not resolved and therefore, the confidentiality of the item continued. until the matter ceased to be confidential, as determined by Council.

When evaluating the integrity and ethical conduct of a Member of Council, my role is to apply the rules of the Code of Conduct, which are Council's agreed upon common basis for acceptable conduct, to the facts gathered throughout the investigation. When making decisions on acceptable conduct, Members of Council are to follow the rules of the Code, the policies and procedures of the municipality and the statutes in force and applicable to them.

Members of Council are held to a high standard of behaviour. This is sometimes perceived as unfair or at odds with their civic duty and obligations to their constituents. However, the Code, the agreed up common basis for acceptable conduct, states that Town of Newmarket Members of Council "have the privilege of attaining elected office [...] and that privilege carries significant responsibilities and obligations ...[including] .. .fairness and respect for difference and a duty to work together for goodwill and common good".

This investigation carefully reviewed the responses of Councillor Di Muccio and found that while she appears to demonstrate a desire to be part of a transparent governance structure at the Town of Newmarket, she has not established either that she was unaware of how to raise her disagreement with discussing the park naming matter in camera or that the Town discussed the matter subject of the August 27th meeting, unlawfully.

This investigation found that Councillor Di Muccio did breach Part II.2. of the Code of Conduct through her disclosure in the September 2012 Guest Columnist article, of some of the substance of deliberations of the August 27, 2012 in camera meeting and that the Councillor knew or should have known that any discussion of the substance of the August 27th in camera meeting was a violation of the confidentiality provisions of the Code of Conduct and the rules of the Town's Procedure By-Law.

The investigation concluded with my recommendation that the Town of Newmarket Council:

i) issue a formal Reprimand to Councillor Di Muccio in relation to her violation of the confidentiality provisions of the Code of Conduct; and

ii) consider effective ways to ensure that Council Members receive education on in camera meeting rules. These rules should be applied consistently to all Members of Council.

APPENDIX

Schedule A

Schedule B

Schedule C

Footnotes

1. 1Municipal and Planning Law Reports (Articles), 4th series, 2011. Transparent Municipal Governance: When Must a Meeting be Open? . Jason Reynar, p.2.
2. 2RS.I Holdings Inc. v. London (City), [2007] 2. S.C.R. 588, 2007 SCC 29, 36 M.P.L.R. (4th) 1, 2007 CarswellOnt 3919 (S.C.C.) at para. 38.