Durham Region (Council Member) (Re), 2018 ONMIC 3

Citation: Durham Region (Council Member) (Re), 2018 ONMIC 3
Date: January 11, 2018

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 decision. https://calendar.durham.ca/meetings/Detail/2018-02-14-0930-Regional-Council-Meeting/2ae7410a-dc35-42a1-975b-a88e00bc67ed (see minutes of February 14, 2018, resolution no. 19)

THE COMPLAINT 3

SUBSEQUENT ALLEGATION 4

SUMMARY 4

PROCESS FOLLOWED 5

QUESTIONS RAISED IN THE INVESTIGATION 6

A. Did the Respondent contravene paragraph 1.2(A), which states as a principle that Members of Council shall serve and be seen to serve their constituents in a conscientious and diligent manner? 7

B. Did the Respondent contravene paragraph 1.2(C), which states as a principle that Members of Council shall perform their duties in office in a manner that promotes public confidence and will bear close public scrutiny? 7

C. Did the Respondent contravene paragraph 1.2(D), which states as a principle that Members of Council shall recognize and act upon the principle that democracy is best achieved when the operation of government is made as transparent and accountable to members of the public as possible? 7

D. Is it even possible for a Council Member to contravene a statement of principle in Section 1 (Principles) of the Code or for Section 1 (Principles) to give rise to a Complaint under the Code? 7

E. Did the Respondent contravene section 14.2 of the Code by declining to assist the Complainant (who is also a constituent) with a similar but separate inquiry while this Code proceeding was ongoing? 7

ANALYSIS AND FINDINGS 7

CONCLUDING OBSERVATION 11

RECOMMENDATION 11

THE COMPLAINT

1The Complainant is a constituent of the Respondent. Under the Council Code of Conduct, the Complainant submitted a Complaint alleging that the Respondent had contravened the Code.

2The Complaint was indirectly related to a financial claim made by the Complainant against the Region. During 2015 and 2016, Council and Council committees were considering the claim and what position to take on the claim. At a meeting in 2015, the Respondent made comments that were generally supportive of the Complainant’s position. Subsequently, at a meeting in 2016, the Respondent voted for a recommendation that fell short of what the Complainant felt was owed. The Complainant was displeased with Council’s and the Region’s handling of his claim, including how the Respondent voted.

3While these events form the background to the Complaint, they are not the conduct that is alleged to have contravened the Code. The actual conduct giving rise to the Complaint occurred in 2017, when the Respondent and Complainant were engaged in further communication about the claim. According to the Complainant, in the course of this communication the Respondent did not accurately describe what had happened at the 2015 and 2016 meetings. In particular, the Complainant felt that the Respondent did not fairly represent the Respondent’s voting record.

4The Complainant alleged that:

The Respondent “lied” about voting against a recommendation when the Respondent had in fact voted for the recommendation.
The Respondent claimed to have been unable to move a motion or amendment that would have been favourable to the Complainant.
The Respondent failed to answer the Complainant’s many questions about why a motion or amendment favourable to the Complainant was never moved.
The Respondent wrongly criticized the Complainant for drawing news media attention to the claim against the Region.

5According to the Complainant, these acts and omissions were contrary to three provisions of the Code: paragraphs 1.2(A), 1.2(C) and 1.2(D). Consequently, the following specific allegations became the basis of my investigation:

A. Allegation that the Respondent had failed to serve and to be seen to serve constituents in a conscientious and diligent manner, as provided in paragraph 1.2(A).

B. Allegation that the Respondent had failed to perform the duties of office in a manner that promotes public confidence and will bear close public scrutiny, as provided in paragraph 1.2(C).

C. Allegation that the Respondent had not recognized and acted upon the principle that democracy is best achieved when the operation of government is made as transparent and accountable to members of the public as possible, as provided in paragraph 1.2(D).

6Because paragraphs 1.2(A), (C) and (D) appear in the “Principles” section of the Code, I also asked the Complainant and Respondent to address whether it was even possible to bring a Complaint that alleged a contravention of a statement of principle:

D. Issue of whether section 1.2 of the Code, which refers to, “Key statements of principles that underline this Code of Conduct,” is a provision that is capable of being breached.

SUBSEQUENT ALLEGATION

7By the time of filing this Complaint under the Code, the Complainant had commenced a lawsuit against the Region on the financial claim. I determined that the present Complaint was not based on the same issues as the lawsuit. The lawsuit related to a financial claim originating many years ago and the present Complaint related to what the Respondent had allegedly said and done relatively recently.

8The lawsuit between the Complainant and the Region eventually settled, but this did not resolve the Complaint under the Code.

9Subsequently the Complainant raised an additional allegation, which I determined should be considered alongside the original Complaint. The Respondent had declined to provide a response to a separate inquiry and assistance request from the Complainant who was, as has been noted, a constituent of the Respondent. This led to the following allegation by the Complainant:

E. Allegation that by declining to reply to the Complainant’s assistance request the Respondent had undertaken an act of reprisal against the Complainant contrary to section 14.2 of the Code.

SUMMARY

10I find that the Code’s Section 1 (Principles) cannot give rise to a Complaint. A Complaint must allege contravention of one or more of the Code’s substantive rules. I could find no violation of paragraphs 1.2(A), 1.2(C) and 1.2(D) because these are statements of principle that are incapable of forming the basis of a Complaint.

11I find that the Respondent was under a legitimate misunderstanding that caused the Respondent to write an email declining to reply to a separate inquiry from the Complainant, who is a constituent. Nonetheless, going forward, it is important for all Council Members to know that they cannot decline to provide constituent services (that otherwise they would provide) on the basis that a constituent has previously filed a Complaint to the Integrity Commissioner or exercised rights under the Code.

PROCESS FOLLOWED

12In operating under the Code, I follow a process that ensures fairness to both the individual bringing a Complaint (Complainant) and the Council Member responding to the Complaint (Respondent). The process is governed by the Council Code of Conduct Complaint Procedure.

13This fair and balanced process includes the following elements:

The Respondent receives notice of the Complaint and is given an opportunity to respond.
The Complainant receives the Respondent’s response and is given an opportunity to reply.
More generally, the process is transparent in that the Respondent and Complainant get to see each other’s communications with me.¹
The Respondent is made aware of the Complainant’s name. I do, however, redact personal information such as phone numbers and email addresses.
As a further safeguard to ensure fairness, I will not help to draft a Complaint and will not help to draft a response or reply.
Where appropriate I will, however, invite a Complainant to clarify a Complaint. When a Complaint has been clarified the Respondent is provided with the original document and all communications between the Complainant and me related to clarification.
When a Complaint has been clarified I deem the date of final clarification to be the official date the Complaint was made.

14In this case, the Complaint was submitted to the Clerk on April 4. There was a delay because I was on medical leave when the Complaint arrived, and then followed several exchanges of correspondence related to clarifying the Complaint. I received clarification on May 22, which I deem to be the date the Complaint was officially received by me.

15From May 28-30, I sought and obtained further clarification from the Complainant. The Respondent received notice of the Complaint (and all the Complaint materials, including a large MP4 (video) file), June 14. The Respondent submitted a voluminous written response, which was shared with the Complainant, and the Complainant subsequently provided a reply, that was shared with the Respondent. The parties then made further representations to me. I also separately interviewed the Complainant and the Respondent.

16On July 24, I issued an interim report informing the parties that I would need more time to complete my report.² I also asked for any further representations in response to the interim report by August, but received none.

17In September I learned that the lawsuit between the Complainant and the Region had been settled. I was also informed of a new issue. The Complainant was attempting to communicate with the Respondent about a similar but separate matter and the Respondent expressed an unwillingness to assist because this Code proceeding was outstanding. This led to the further allegation of a Code violation that I rolled into the investigation.

18Section 5.1 of the Complaint Procedure provides for settlement discussions:

“If at any time, following the receipt of a Complaint or during the investigation process, the Integrity Commissioner believes that an opportunity to resolve the matter may be successfully pursued without a formal investigation, and both the Complainant and the member agree, efforts may be made to achieve an informal resolution. The formal Complaint will be held in abeyance during such time.”

19I felt that there was an opportunity for settlement. Both the Complainant and Respondent agreed to explore a resolution. I suspended the process while I spoke to the parties. Ultimately, a settlement could not be reached. I am therefore presenting this report.

20During this process, the Complainant and the Respondent each had full opportunity to provide information and to make representations. I have taken each party’s submissions and communications with me into account.

QUESTIONS RAISED IN THE INVESTIGATION

21My investigation considered five questions:

A. Did the Respondent contravene paragraph 1.2(A), which states as a principle that Members of Council shall serve and be seen to serve their constituents in a conscientious and diligent manner?

B. Did the Respondent contravene paragraph 1.2(C), which states as a principle that Members of Council shall perform their duties in office in a manner that promotes public confidence and will bear close public scrutiny?

C. Did the Respondent contravene paragraph 1.2(D), which states as a principle that Members of Council shall recognize and act upon the principle that democracy is best achieved when the operation of government is made as transparent and accountable to members of the public as possible?

D. Is it even possible for a Council Member to contravene a statement of principle in Section 1 (Principles) of the Code or for Section 1 (Principles) to give rise to a Complaint under the Code?

E. Did the Respondent contravene section 14.2 of the Code by declining to assist the Complainant (who is also a constituent) with a similar but separate inquiry while this Code proceeding was ongoing?

ANALYSIS AND FINDINGS

A. Did the Respondent contravene paragraph 1.2(A)?

22No.

23For the reasons detailed under sub-heading (D), below, I find that a statement of principle cannot be contravened and a statement of principle cannot give rise to a Complaint under the Code. As paragraph 1.2(A) of the Code is a statement of principle, I cannot find a contravention of it.

B. Did the Respondent contravene paragraph 1.2(C)?

24No.

25For the reasons detailed under sub-heading (D), below, I find that a statement of principle cannot be contravened and a statement of principle cannot give rise to a Complaint under the Code. As paragraph 1.2(C) of the Code is a statement of principle, I cannot find a contravention of it.

C. Did the Respondent contravene paragraph 1.2(D)?

26No.

27For the reasons detailed in under sub-heading (D), below, I find that a statement of principle cannot be contravened and a statement of principle cannot give rise to a Complaint under the Code. As paragraph 1.2(D) of the Code is a statement of principle, I cannot find a contravention of it.

D. Is it even possible to contravene a statement of principle?

28No.

29Early on in the proceeding I told each party, in writing, that an issue under consideration was whether the statements of principle in section 1.2 could give rise to a Complaint under the Code. I expressly invited their submissions on this point and I have taken their representations into consideration.

30In other municipalities I have had to consider whether the “principles” section of a code of conduct can be the subject of a complaint: see Re Kett (No. 2), 2017 ONMIC 14, and Re Wilson, 2017 ONMIC 13.

31In this case, the Complaint was based on paragraphs 1.2(A), 1.2(C) and 1.2 (D) of the Code.³ These paragraphs appear in Section 1 of the Code, “Principles.” As the name indicates, Section 1 does not contain rules. It states principles.

32As a general matter, a statement of principle does not create an obligation. It merely states the principle(s) that may be used to interpret obligations created elsewhere in the law.⁴

33The Council Code of Conduct was enacted by by-law.⁵ Principles of statutory interpretation apply. As explained in Sullivan on the Construction of Statutes, 6th ed.:

“Purpose statements may reveal the purpose of legislation either by describing the goals to be achieved or by setting out the governing principles, norms or policies. … However, like definitions and application provisions, purpose statements do not apply directly to facts but rather give direction on how the substantive provisions of the legislation – that do apply to facts – are to be interpreted.”⁶ [emphasis added]

34I find that Section 1 (Principles) provides interpretive direction only, and it does not create rules or obligations on Council Members that can be the subject of a Complaint. Thus, even though section 1.2 declares, “Key statements of principles that underline this Code of Conduct,” these are only statements of principle. Statements of principle are not enforceable rules.

35Another reason that I am not prepared to treat the content of the Principles section as binding rules is that its content is too general and unspecific to be treated as clear, enforceable obligations. Council Members are subject to penalties if they contravene the rules in the Code; it necessarily follows that the rules must be clear, certain and unambiguous. Council Members must be able to understand clearly the conduct that is required. In this respect I refer to the observations of Integrity Commissioner Swayze in [Hayes v. Miles], City of Brampton Report L05 IN (May 12, 2015):

“In my experience members of councils in Ontario are busy people serving their community and want certainty in the interpretation of the many rules that apply to them. A code, by definition, is a set of rules of behaviour and should not be interpreted by each councillor according to subjective values. The rules need to be clear and where possible, capable of only one meaning.” [emphasis added]

36While I do not agree that being busy is relevant to interpretation of the Code, I accept and adopt Integrity Commissioner Swayze’s comments about the need for clarity, certainty and lack of ambiguity in the rules.

37I find that Section 1 of the Code, the “Principles” section, provides interpretive guidance but is not itself a provision that can be contravened.

38Going forward, I will not consider the “Principles” section as capable of giving rise to a contravention or forming the basis for a Complaint. This section may, however, be considered in the course of interpreting other sections of the Code.

B. Did the Respondent contravene section 14.2?

39The Respondent should not have let a Code proceeding stand in the way of communicating with a constituent. Nonetheless, in this case, the Respondent did provide constituent service by forwarding the Complainant’s inquiry to the Region’s staff. Consequently, I do not make a finding of breach.

40As result of this report, the meaning and impact of section 14.2 should now be clear to all of Council. The fact that a Complaint under the Code cannot interrupt constituent services should now be understood by everyone. No Council Member should decline to provide constituent services to an individual because that individual has made a Complaint under the Council Code of Conduct.

41Section 14 as a whole is intended to protect people who seek remedies under the Code and who participate in Code proceedings. Its title is clear: “No Reprisal or Obstruction in the Application or Enforcement of this Code.”

42The specific provision at issue in this case is the second sentence of section 14.2:

“No member shall undertake any act of reprisal or threaten reprisal against a complainant or any other person for providing relevant information to the Integrity Commissioner or any other person under the Code of Conduct.”

43“Reprisal” means retaliation; for section 14.2 to apply, the reprisal (retaliation) or threat of reprisal must be intended as a response to the making of a Complaint or to the giving of information to the Integrity Commissioner.⁷

44The facts leading up to the Complainant’s allegation of a reprisal are as follows:

September 14, the Complainant, as a constituent of the Respondent, sent the Respondent an email asking for assistance in relation to a similar but separate matter. The email was also addressed to another Member of Regional Council and to a local councillor. It was copied to the Complainant’s neighbour, who was another constituent of the Respondent.
September 16, the Respondent emailed back to state: “[Name of Complainant] you filed a Complaint about me with the Integrity Commissioner challenging my honesty and integrity – until such time as this matter has been dealt with I will not take part in any questions, comments, conversations or concerns that involves you or your property.”
Despite making this comment, the Respondent did forward the Complainant’s September 14 email to the appropriate staff members of the Region.

45The Complainant doubted that there was any rule that prevented the Respondent from helping the Complainant and the Complainant’s neighbour with an issue until the Integrity Commissioner proceeding was resolved. The Complainant felt that the Respondent’s email was a violation of section 14.2.

46The Respondent maintained that this was standard practice: “I have for the past [number deleted] years worked on the basis that if there is a Complaint or a court case [in] which a councillor is involved they should refrain from any further dialogue with that person until the case has been addressed. Hence my response …”

47The Respondent also noted that the Complainant’s email had, in fact, been forwarded to the Regional staff for follow up, so the constituent received service.

48The Code does not specify how a Councillor should provide service to constituents. There is no explicit requirement to reply to emails, to forward issues to the Region’s staff or to answer questions. Whether any of these might be implicitly required by the Code does not need to be addressed in this case, which focuses on reprisal. For present purposes, it is sufficient to find that if a Councillor would otherwise provide service to a constituent, but refuses to do so because the individual previously made a Complaint under the Code, then that constitutes a reprisal and section 14.2 is contravened.

49In general, a Council Member should not decline to help a constituent – in a situation where the Council Member otherwise would assist – simply because the constituent has previously complained under the Council Code of Conduct. Had the Respondent known this at the time, I expect that the September 16 email would not have been sent, or would have been significantly different.

50The Complainant’s reaction to the Respondent’s September 16 email was understandable. Given the wording, it was reasonable for the Complainant to wonder whether the September 16 email was a form of reprisal. With the clarity provided by this report, presumably a similar exchange between a Council Member and a constituent will not occur in future.

51Despite the wording of the September 16 email, the Respondent did, in fact, act on the Complainant’s inquiry by forwarding the matter to the staff. There was, therefore, no denial of constituent service. For that reason I do not make a finding of a breach.

CONCLUDING OBSERVATION

52Because I make no finding of a contravention of the Code, I am not naming the Respondent.

RECOMMENDATION

53I recommend that the findings of this report be received for information

Respectfully submitted,

Guy Giorno

Integrity Commissioner

Regional Municipality of Durham

January 11, 2018

Footnotes

Occasionally, in my discretion, I may decline to share a communication when the communication is irrelevant to the investigation or I will not consider the communication and (in either case) the other party is not prejudiced by the lack of sharing.
According to section 9.1 of the Complaint Procedure this type of interim report goes only to the parties.
As already mentioned, an allegation under section 14.2 arose later. I consider it under sub‑heading (E).
Greater Vancouver Regional District v. British Columbia (Attorney General), 309 BCAC 124, 2011 BCCA 345, at para. 45: “Section 3(c) purports only to state a principle … It is plain and obvious that s. 3(c) creates no legally enforceable obligation …”
By-law Number 46-2016 confirms the proceedings of Regional Council at its September 14, 2016, meeting. These proceedings included approval of the Code.
Sullivan, R., Sullivan on the Construction of Statutes, 6th ed. (2014), at 454, §14.39.
For a discussion of the elements of a reprisal and how it is identified, see Noble v. York University, 2010 HRTO 878 at paras. 31-35.