Citation: Craig (Re), 2017 ONMIC 1 Date: 2017-01-11

COMPLAINT REFERENCE NUMBER CAM-02-0916 – MAYOR DOUG CRAIG

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.

http://calendar.cambridge.ca/Council/Detail/2017-01-24-1900-Agenda/07e9896b-8df8-4efc-94c9-a72400cc540b#page=4 (see item 6)

BACKGROUND.. 3

The By-Law.. 3

The Complaint 3

The Mayor's Perspective. 3

Interview and email communication with the Complainant 6

ANALYSIS.. 6

CONCLUSION AND FURTHER COMMENTS.. 7

The By-Law

By-Law 18-15 states:

"Committee" means any advisory or other committee, subcommittee or similar entity of which at least 50 per cent of the members are also Members of City Council, and includes a Standing Committee, an Ad Hoc Committee, a Special Committee, or a Task Force of Council;

"ex-officio" means by virtue of the office or position and the Mayor is an ex-officio member of all Standing Committees who, when attending a Standing Committee Meeting, shall have full voting privileges and shall be counted for the purpose of the Standing Committee's quorum;

"Standing Committee" means a Committee established by Council, comprised entirely of Members of Council, to carry out duties on an ongoing basis, as specified by Council;

Section 21.4 of the By-Law deals with the Mayor's Vote on Committees and reads as follows:

That the Mayor may be an ex-officio member of each committee to which the Mayor is not specifically named and shall be counted for quorum purposes and entitled to vote at such meetings at which he or she is present.

The Complaint

The complaint against the Mayor was filed with the Office of the Integrity Commissioner on September 28, 2016. The Complainant is a resident of the City of Cambridge.

The Mayor's Perspective

I interviewed the Mayor in-person. He has been an elected official in Cambridge for over 30 years and has been Mayor since 2000. He believes the prior two Mayors of the City were ex-officio members of all City of Cambridge committees.

The Mayor provided an Affidavit dated October 24, 2016. The following excerpts are of note:

"On May 16, 2016, at a Special Meeting of Council, the Multiplex Site Evaluation Assessment Task Force (the "Task Force") was established. The Task Force was to comprise of 2 members of Council, 2 members of staff and 3 members of the public. The purpose of the Task Force was to increase community engagement and assess locations for a new multiplex community centre. In my capacity as Mayor it was my intention to be a member of the Task Force and I did in fact participate in meetings of the Task Force as a voting member.

The Terms of Reference of the Task Force outline the membership of the Task Force. The Terms of Reference do not provide that the Mayor would be an ex-officio member of the Task Force.

It has been a long standing practice of the City of Cambridge that the Mayor would have an ex-officio status for all committees, however constituted, of the City of Cambridge where the Mayor has not been specifically named.

I have actively participated in other committees in an ex-officio capacity, including voting on resolutions of the respective committees. It has always been my understanding and practice that the Mayor held ex-officio and voting status for all committees.

At no time prior to my participation on the Task Force did I believe that my participation on the Task Force was contrary to the By-Law 18-15 of the City of Cambridge (the "Procedural By-Law").

I reviewed the Procedural By-Law, and in particular the definition of Committee as provided therein. I noted the reference to the number of Members of City Council in the context of that reference. It was my observation that the definition of Committee provided for the potential for multiple interpretations and ambiguity and that there could be confusion regarding the definition of a "Committee" as provided in the Procedural By-Law.

I did not believe that my conduct and participation on the Task Force was contrary to the Procedural By-Law and by extension the Code of Conduct, at any time.

I note that under the Definitions section of the Procedural By-Law, the definition of "ex-officio" provides that the Mayor is an ex-officio member of all Standing Committees. "Standing Committee" is defined as committee of Council comprised entirely of Members of Council. However, the definition of "Committee" includes the term Standing Committee. Within the definition of Committee is reference to a "similar entity of which at least 50 per cent of members are also Members of City Council".

Section 21.4 of the Procedural By-Law provides that the Mayor may be an ex-officio member of each Committee to which the Mayor is not specifically named. The provision also provides that the Mayor is counted for quorum purposes and is entitled to vote.

I have conducted myself as Mayor in accordance with the terms and intent of the Code of Conduct and the Procedural By-Law. If my participation on the Task Force, or any prior committee of Council, was a contravention of the Code of Conduct and the Procedural Bylaw then it was done through inadvertence and with no improper intention."

During my interview with the Mayor, he re-stated what he had written in his affidavit and reiterated his view that the definitions in By-Law 18-15 and section 21.4 of By-Law 18-15 are ambiguous. His view is that when By-Law 18-15 is read, it is unclear whether the definition of "committee" includes a task force and what city committees the Mayor may participate in as an ex-officio member.

He explained that he and numerous other Mayors (including the Mayors of Kitchener and Waterloo) believe that the correct interpretation of the By-Law allows the Mayor to sit as an ex-officio member of all City committees, whether City committees or task forces. To support his contention, he noted the following statements from his colleagues:

Our procedural bylaw provides in Section 3.4.1for the Regional Chair to "sit ex- officio" as a member of all Standing and other Committees of Council and be entitled to vote at meetings" - Ken Seiling, Regional Chair, Region of Waterloo

Both our procedural bylaw and terms of reference for all committees of Council state that I am the Ex-Official of all and have voting rights in all committees of Council. - Sue Foxton, Mayor, North Dumfries

I have confirmed with our Clerk. That our procedural by-law states that the Mayor is an ex-officio member of all committees appointed by council, with full voting rights. - Les Armstrong, Mayor, Township of Wilmot

It has always been my understanding that I can attend any and all Township approved committees in an ex-officio status. – Joe Nowak, Mayor, Township of Wellesley

I interviewed Michael Di Lullo, the City Clerk for the City of Cambridge. Mr. Di Lullo was of the view that the Mayor was properly an ex-officio member of the Multiplex Task Force. His understanding was that the Mayor had an opportunity to participate and vote on any committee struck by Council, including task forces.

Mr. Di Lullo believed that the By-Law was ambiguous in that it did not specifically state that a task force should be considered a "committee", but he believed that that was the intent of the By-Law and that that was what the wording of the By-Law suggested. He also believed the term ex-officio could be clarified to ensure consistency and to ensure that it be given its proper meaning.

After this issue was raised by the Complainant, the City decided to revise the By- Law to clarify the definition of "committee" and "ex-officio" to attempt to remove any ambiguity. This was done by way of By-Law 165-16, being a By-Law of the Corporation of the City of Cambridge to amend Procedural By-Law 18-15. The new By-Law was passed on October 18, 2016. It made the following amendments to section 1.1(Definitions) to By-Law 18-15:

"committee" means any advisory or other committee, subcommittee or similar entity and includes a Standing Committee, an Ad Hoc Committee, a Special Committee or a Task Force of Council.

"ex-officio" means by virtue of the office, the Mayor is an ex-officio member and may attend all committees and shall have full voting privileges and shall not be counted for the purposes of the committee's quorum.

Interview and email communication with the Complainant

The Complainant believed that the Mayor served on the Multiplex Task Force in order to influence the Multiplex Task Force's work and gain approval for the project, in violation of By-Law 18-15, and thus in violation of the Code.

ANALYSIS

After taking into consideration both the Complainant's and the Mayor's perspectives and reviewing By-Law 18-15, I find that the wording of the By-Law is ambiguous in terms of what committees the Mayor may sit on as an ex-officio member.

In the definitions section of the By-Law, "ex-officio" is limited to allowing the Mayor to be a member of all Standing Committees. However, section 21.4 of the By-Law allows the Mayor to be an ex-officio member of each Committee to which the Mayor is not specifically named. Further, that section provides that the Mayor shall be counted for quorum purposes and entitled to vote at such meetings if he or she is present. Given this contradiction, I find that the Mayor did not violate By-Law 18-15 when he sat as a member of the Multiplex Task Force as an ex-officio member.

The Mayor's belief that he was able to participate ex-officio on the Multiplex Task Force was reasonable. His understanding of his ability to serve as an ex-officio member of any City committee is supported by the Regional Chair of Waterloo and the Mayors of North Dumfries, the Township of Wilmot, and the Township of Wellesley. It appears to be a common understanding and practice of Mayors to sit as ex-officio members on any committees they deem necessary in order to carry out the responsibilities of their office, including task forces.

CONCLUSION AND FURTHER COMMENTS

The Complainant had a reasonable concern that the Mayor was in violation of the By-Law; however, the Mayor's understanding of his ability to be an ex-officio member of Multiplex Task Force was a reasonable one. Given that the Mayor's interpretation of By-Law 18-15 was a reasonable one in the circumstances, I therefore find that the Mayor did not violate By-Law 18-15 and therefore did not violate the Code.

After the draft report was sent to the Complainant and the Mayor, the Complainant provided a number of comments and questions. The Mayor had no comments on the draft report.

I will note the Complainant's comments and questions to the draft report and my responses to them:

"If the municipality procedural bylaw (18-15 at the point of the complaint) was ambiguous, would the Municipal Act not be the document that actually prevails?"

o The jurisdiction of the Office of the Integrity Commissioner is limited to investigating complaints about breaches of the Code. We do not have jurisdiction to investigate and opine on whether there has been a violation of the Municipal Act.

"How much legal advice (fee and hours) did the Mayor receive from City Legal Counsel free of charge? I am curious as I have received none to date."

o This question is again not within the jurisdiction of the Office of the Integrity Commissioner.

"In the beginning of the process it was difficult to determine if the Ombudsman or the Office of the Integrity Commissioner was responsible for my complaint. This resulted in both an inconvenience and delay."

o We acknowledge and appreciate you bringing this issue to our attention. We will work with the City of Cambridge and its Municipal Ombudsman to try to guide future complainants to the appropriate office.

I therefore do not recommend that the Mayor be sanctioned for a violation of the Code.

Yours truly,

ADR CHAMBERS INC.

Marshall Schnapp

Office of the Integrity Commissioner