TOWN OF ORANGEVILLE integrity commissioner, GUY GIORNO
INTERIM REPORT ON COMPLAINT
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 decisions.
https://www.orangeville.ca/get-file/5534 (see minutes of October 16, 2017, page 224, resolution no. 4, and pages 224-5, resolution no. 5)
TABLE OF CONTENTS
PURPOSE OF INTERIM REPORT 3
THE COMPLAINT 3
MY APPOINTMENT 3
PROCESS AND TIMING 5
CONCLUSION 8
PURPOSE OF INTERIM REPORT
This is an interim report on whether a Council Member has breached the Code of Conduct for Council, Local Boards and Committees.
The interim report is issued under section 17 of the Complaint Protocol, which provides:
"The Integrity Commissioner may make interim reports to Council where necessary and as required, including to address any instances of interference, obstruction, delay, reprisal retaliation associated with the investigation."
- The report addresses the delay associated with the investigation, including a challenge to my authority to conduct the investigation.
THE COMPLAINT
An employee of the Town has filed a complaint alleging that a Council Member violated thirteen sections of the Code.
To my knowledge, this is the first Code of Conduct complaint ever filed by an Orangeville employee against a Council Member.
One of the sections of the Code cited by the employee does not apply to the situation and two others are not capable of giving rise to a complaint. Based on the evidence submitted by the employee, I determined that it was appropriate to commence an inquiry into whether the remaining ten sections had been contravened. Sections 3.1, 4.1, 6.1, 13.3, 13.4, 13.5, 14.2, 14.3, 15.1 and 15.2 are the ones at issue.
You will note from the section numbers that the allegations – which I stress at this stage are only allegations – include interfering with or unduly influencing staff in the performance of duties (section 13.3), doing things that may be construed as an attempt to influence the independent administration of justice (section 13.5), and breaching the duty to treat members of the staff appropriately and without abuse, bullying or intimidation (section 14.3).
MY APPOINTMENT
The Council Member is challenging the validity of my re-appointment, even though it was made August 21, 2017, and confirmed by By-law Number 069-2017.
My original appointment, by By-law Number 081-2016, was for a term ending July 31, 2017, "or until his successor is appointed."
Because no successor was appointed, I continued to serve as Integrity Commissioner after July 31.
On August 21, the Town Council voted unanimously to renew my appointment until July 31, 2021. It passed a resolution providing:
"that the appointment of Guy Giorno, Fasken Martineau, as Integrity Commissioner for the Town of Orangeville be renewed for a four-year term to July 31, 2021 as per the agreement effective August 1, 2016."
The decision to renew my term was then confirmed by By-law Number 069-2017. This by-law provides that all decisions made on August 21 are "hereby adopted, ratified and confirmed as if all such proceedings were expressly embodied in this or a separate by-law."
A confirming by-law, such as By-law Number 069-2017, is all that is needed to give legal effect to decisions taken at a council meeting: Metropolitan Toronto (Municipality) v. Atkinson (1976), 1976 CanLII 43 (ON CA), 12 O.R. (2d) 401 (C.A.) at 409; Jackson v. Vaughan (City), 2009 CanLII 10991 (Ont. SC) at para. 191.
The Council Member who is the subject of the complaint seems to feel that By-law Number 069-2017 is invalid because not all of Council was present on August 21. As Council will be aware, as long as a quorum is present, absences do not affect the validity of Council decisions. By-law Number 069-2017 remains law until it is amended or repealed.
For reasons unknown to me, despite the August 21 renewal confirmed by By-law Number 069-2017, a second by-law on renewal of my appointment was considered at the September 25 Council Meeting. It failed on a 3-3 tie vote.
The fact that this second (and redundant and unnecessary) renewal by-law did not pass has no effect on By-law Number 069‑2017, which is the operative by-law confirming renewal of my appointment.
The Council Member who is the subject of the complaint argued that I should not proceed until the implications of the September 25 vote are determined. I disagree, because the implications, more precisely, the non-implications, are known. The vote on September 25 had no impact on By-law Number 069-2017. Even if I am wrong about the meaning of By-law Number 069-2017, the vote on September 25 also had no effect on By‑law Number 081‑2016, which provides that I continue to serve until my successor is appointed.
In my view, I would be derelict in my responsibilities if I failed to recognize and to follow By-law Number 081-2016 and By-law Number 069-2017. These by-laws remain binding on me unless and until both are amended or repealed. I therefore explained to the Council Member that I am obliged to continue the investigation.
The Council Member advised me to suspend the investigation. I declined to do so, because as Integrity Commissioner I am accountable to Town Council as whole. It is not appropriate for me to take direction from an individual Council Member. This is particularly true when the Council Member who is advising me on how to handle an investigation is the very subject of the investigation.
PROCESS AND TIMING
Where appropriate I will invite a Complainant to clarify a Complaint. When a Complaint has been clarified I deem the date of final clarification to be the official date the Complaint was made.
In this case, there were two points where I sought clarification. First, upon receiving the original complaint form from the employee, I contacted the employee directly to discuss that the process would entail disclosure of the employee's identity to the Respondent and to confirm that the employee did, knowing this fact, still intend to proceed with a Complaint against the Respondent. Second, the Complaint referred to certain materials that needed to be obtained so they could be given to the Respondent.
The chronology was as follows:
August 1 Complainant submits original complaint form.
August 17 Materials obtained and Complainant confirms intention to proceed.
August 21 Council renews my appointment until July 31, 2021, confirmed by By-Law Number 069-2017.
August 24 Notice of Complaint (including all materials) sent to Respondent; includes disclosure to Respondent of Complainant's identity. Response requested by September 5.
August 31 Since Respondent has not acknowledged receipt of email, a copy of the Notice of Complaint package is sent by courier.1
September 1 Courier package presumed delivered.
September 2 Respondent emails to seek more time to respond. I give extension to September 18.
September 11 Respondent attends Council Meeting; minutes of August 21 meeting (including renewal of Integrity Commissioner appointment and passage of confirming by-law) are presented and approved.
September 18 Shortly before midnight, Respondent emails to say more time is needed; also asks about status of the courier package.
September 19 Early in the morning I reply that only one courier package was sent (delivery address was Town office), inside double envelopes each marked "to be opened only by [Name of Respondent]." Respondent says Respondent never received package but also says Respondent prefers email and confirms email was received.
September 19 During email exchange, Respondent commits to review the documents "this week and reply as soon as able." Taking the Respondent's word, I do not insist on a specific deadline.
September 21 Agenda package for Sept. 25 Council Meeting finalized; includes reference to second (and therefore unnecessary) by-law on renewal of appointment.
September 25 Respondent participates in Council Meeting where Integrity Commissioner role is discussed; votes on second renewal by-law. No pecuniary interest declared.
September 28 I email Respondent to inquire about status of Response. Respondent replies questioning my authority to investigate. I draw Respondent's attention to By-law Number 069-2017 (which confirmed the renewal) and By-law Number 081-2016 (which provides that I continue until a successor is appointed).
September 28 Email exchange ends with Respondent agreeing to respond but maintaining the position that I lack authority. Respondent adds that complaint materials have yet to be reviewed. Respondent will endeavour to respond by October 5.
October 5 Shortly before midnight, Respondent emails the Response.
October 6 Early in the morning, I send Response to the Complainant and invite a Reply by October 13.
The chronology indicates that I was patient and gave the Respondent ample opportunity to respond. The standard deadline, in section 11.2 of the Council's Complaint Protocol, is "within seven business days."
In this case, the Response was submitted within 28 business days (43 calendar days). Even accounting for the possibility of vacations and other absences, this was a generous amount of time.
As Integrity Commissioner, I have no authority or jurisdiction to interpret or to apply the Municipal Conflict of Interest Act. Therefore, it is not my position to state whether a Council Member who is the subject of a complaint investigation is entitled to participate in a vote related to the office of Integrity Commissioner. I make no comment on this. A complaint investigation could lead to a potential recommendation of suspension of pay, but I stress that in this case the investigation has not been completed and it is premature to contemplate any findings, let alone recommendations.
I also decline to comment on whether a Council Member who is the subject of a complaint investigation has a disqualifying non-pecuniary interest in votes related to the office of Integrity Commissioner. As I explained in Re Wilson, 2017 ONMIC 13, the Code does not cover non-pecuniary conflicts of interest and therefore I have no jurisdiction to consider them. (I should add that one reason I take care to prepare thorough reports is so they can provide future guidance to Council, such as this case, where a finding in Re Wilson effectively operates to the benefit of the Respondent in File 2017-03.)
At this stage, I have not found that the Respondent's conduct constitutes obstruction under section 16.2 of the Code. The Respondent has been slow to respond to my inquiries, but did respond, and communication has been professional. Further, because the September 25 vote had no effect on By‑law Number 069-2017 and By‑law Number 081‑2016, and therefore had no effect on this investigation, it alone cannot constitute obstruction. On the other hand, continued delay or objections without merit might be considered obstruction. I do not believe obstruction has yet occurred. As a matter of process, an Integrity Commissioner cannot find that a Council Member has been obstructive without giving the Council Member notice of the allegation and a fair opportunity to respond.
The Respondent knows the Complainant's identity, but the Code protects the Complainant from reprisal. There has been no suggestion of any. Of course, without an Integrity Commissioner, protection from reprisal cannot be enforced.
CONCLUSION
- I will complete the investigation in File 2017-03 as soon as possible, but I depend on the continued cooperation of the parties. In the circumstances, I cannot estimate when the final report will be issued.
Respectfully submitted,
Guy Giorno
Integrity Commissioner
Town of Orangeville
October 7, 2017
Editorial note: For final report see Greatrix v. Williams, 2018 ONMIC 6, 2018 CanLII 140174 (ON MIC)