Farr v. Brose (No. 2), 2019 ONMIC 5

TOWNSHIP OF NORTH ALGONA WILBERFORCE INTEGRITY COMMISSIONER, GUY GIORNO

Citation: Farr v. Brose (No. 2), 2019 ONMIC 5
Date: April 5, 2019

REPORT ON CODE OF CONDUCT 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.

http://www.nalgonawil.com/wordpress/wp-content/uploads/SKM_C364e19050315090.pdf (see minutes of April 16, 2019, resolution no. 4-16-135)

TABLE OF CONTENTS

THE COMPLAINT 3
SUMMARY 3
BACKGROUND 3
PROCESS 6
POSITIONS OF THE PARTIES 6
Complainant 6
Respondent 6
ISSUES RAISED 6
ANALYSIS AND FINDINGS 7
(A) Is failure to invite people to the Christmas party (assuming this happened) a breach of the Code? 7
(B) Is unfair reporting about the Complainant’s credit card use (assuming this occurred) a breach of the Code? 7
(C) Do I have jurisdiction over a complaint against the staff arising under the Employee Code of Conduct? 8
CONCLUSION 8
RECOMMENDATION 8
CONTENT 8
RELEVANT PROVISIONS OF BY-LAWS 9
Council Code of Conduct, By-law Number 2016-15 9
Employee Code of Conduct, By-law Number 2016-12 10

THE COMPLAINT

1Ms Deborah Farr (the Complainant) alleges that Mayor James Brose (the Respondent) contravened section 3, subsection 3(a), and section 3, subsections 1(a) and 1(b), of the Council Code of Conduct, By-law Number 2016-15.

2The allegation under section 3, subsection 3(a), is that volunteer members of two committees were excluded from the Township Christmas party.

3The allegation under section 3, subsections 1(a) and 1(b), is that the Complainant was unfairly criticised in three staff reports (two oral and one written) about her use of a Township credit card during part of her term of office as Mayor.

4The Complainant also makes allegations related to contravention of the Employee Code of Conduct but as Integrity Commissioner I lack jurisdiction over the Employee Code.

SUMMARY

5Having reviewed and considered all of the material presented by the Complainant, as well as relevant Council minutes and applicable By-laws, I find insufficient grounds for further inquiry into this Complaint. The file is closed.

BACKGROUND

6For several years, a committee has organized the local Canada Day celebration. Various names have been used to describe the committee. At its January 25, 2018, meeting, Council recognized the role of the Celebrate Canada Day Committee in organizing the 2018 Canada Day celebration at the Golden Lake Community Centre. In subsequent reports to Council, the committee called itself the Canada Day 2018 Organizing Committee. In the Council minutes and agendas, the committee was simply called Canada Day Committee.

7The Canada Day Committee’s final report to Council (August 23 meeting) named eight committee members, including two sitting Council Members, one of whom was the Complainant, and six volunteers (local residents).

8The Procedural By-law provides that Council may, from time to time, appoint an Ad Hoc Committee that is dissolved after completion of its task or objective. The Complaint mentions an Ad Hoc Committee but does not specify which one. I assume that the Complainant is referring to the Ad Hoc Committee on the Deacon Boat Launch, which was active during 2018.

9According to the Complainant, members of the Canada Day Committee and the Ad Hoc Committee were not invited to the 2018 Christmas party, but members of the Recreation Committee (and their spouses) were invited, as were volunteer firefighters and spouses, Township employees and spouses, and one former Council Member.

10The Complainant does not state the date of the party, but I assume she is referring to the same event as was the Mayor when he reported to Council on an upcoming, “appreciation dinner for staff, council and volunteers at the Sands restaurant on Saturday, December 15 …”

11According to Council minutes, on October 16 the Chief Administrative Officer/ Operations Manager reported orally on plans for a Christmas party. There appears to have been no Council resolution establishing the event or deciding on the invitation list. The Complainant alleges that the Mayor and Chief Administrative Officer/Operations Manager organized the event; that assertion has not been proven and the Mayor was not asked to address it (because, given my disposition of the Complaint, it is unnecessary for the Mayor to respond).

12The Complainant alleges that failure to invite members of the Canada Day Committee and the Ad Hoc Committee, when other volunteers were invited, breached the duty to “treat every person, including … volunteers and the public, with dignity, understanding and respect for the right to equality” in Section 3, subsection 3, of the Code.

13According to the Complainant, in 2017, when she was the Mayor, all volunteers were invited to attend the dinner at the Rankin Community Centre.

14The second allegation involves the Complainant’s view that she has been unfairly maligned in comments made about her use of the Township credit card in connection with the 2018 Canada Day celebration. The alleged comments were made by the Chief Administrative Officer/Operations Manager, not by the Mayor. According to the Complainant, the unfair comments were included in three reports by the Chief Administrative Officer/Operations Manager:

• Oral report to January 14 meeting of Recreation Committee
• Oral report to January 22 meeting of Council
• Written report dated January 22, which for some reason appeared in the February 5 agenda package, not the January 22 package

15It should be noted that the written report of the Chief Administrative Officer/Operations Manager made clear:

“This is not an issue of accusing any person or group of wrong doing it is an issue of ensuring Township expenditures are tracked correctly. It is the responsibility of staff to ensure financial information is received and accounted for using standards and practices that are in keeping with responsible management of municipal expenditures.”

16Despite this clarification, the Complainant still feels she was maligned. Specifically, she believes that the following information has not been reflected in public reports:

• The Canada Day Committee received no guidance on how to record and track expenditures, and otherwise would have followed it.
• A January 23, 2018, Council resolution committed $2500 funding, and authorized the Committee “to maintain and co-ordinate all ordering, receiving, accounts payable and receivable.”
• As Mayor at the time, the Complainant was an ex-officio member of the Canada Day Committee and all other committees.
• Credit card expenditures for Canada Day were within the amount previously approved by Council.
• As Mayor, the Complainant received a Township credit card ($3000 limit) at the beginning of her term and her authority to use it was never rescinded.
• The credit card duplicate charge for Canadian flags was caused by the supplier’s error and was corrected.

17The Complainant refers to Section 3, subsection 1(a), of the Code, which provides that, “All dealings between Council, committee appointees, municipal employees and the public are to exhibit a high degree of professionalism and are to be based on honesty, respect, impartiality and fairness.”

18She seems to suggest that the Mayor ought to have prevented the comments, because subsection 1(b) states: “The Chairperson should never allow Councillors or delegations at Council or Committee of the Whole to publicly criticize identifiable employees. It is the responsibility of the Chair to ensure that both parliamentary procedure and rules of etiquette are observed by those in attendance.”

19The Complainant wants an apology, and wants corrected information to be made public.

20The Complainant says she communicated with the Council at least twice to ask for an apology. She says she addressed Council on March 5, prior to the call to order, and emailed Council Members on March 14. Presumably because she did not speak during the meeting itself, the March 5 minutes do not mention the Complainant’s statement, and, possibly because it was sent directly to Members, her email did not appear in the March 19 agenda package.

21The Complainant’s third allegation is that, because of premium pay for work on a holiday (double time and one-half, plus one paid day off), it is a conflict of interest for the Township staff to recommend that the staff work on Canada Day. She quotes from section 6 of the Employee Code of Conduct, By-law Number 2016-12.

PROCESS

22Ordinarily I follow a process in which the Respondent receives notice of the Complaint and is given an opportunity to respond, and then the Complainant receives the Response and is given an opportunity to reply.

23In this case, I gave the Respondent notice of the Complaint but, before inviting him to respond, I decided to review the Complaint (including the voluminous background material) to determine whether there are grounds to continue.

24Based on my review of the Complaint, I have determined that there are insufficient grounds to find a breach of the Code of Conduct. I am proceeding directly to issue a report and there is no need for the Mayor to respond.

POSITIONS OF THE PARTIES

Complainant

25As I have explained, the Complainant alleges contraventions of section 3, subsection 3(a), and section 3, subsections 1(a) and 1(b), of the Council Code of Conduct.

Respondent

26Because I find insufficient grounds to continue the inquiry, it has not been necessary for me to invite the Mayor to respond.

ISSUES RAISED

27I have considered the following issues:

(A) Is failure to invite people to the Christmas party (assuming this happened) a breach of the Code?

(B) Is unfair reporting about the Complainant’s credit card use (assuming this occurred) a breach of the Code?

(C) Do I have jurisdiction over a complaint against the staff arising under the Employee Code of Conduct?

ANALYSIS AND FINDINGS

(A) Is failure to invite people to the Christmas party (assuming this happened) a breach of the Code?

28No.

29The rule on which the Complainant relies is based on the Human Rights Code.

30The relevant passage is: “Members of Council shall abide by the provisions of the Human Rights Code and, in doing so, shall treat every person, including ... volunteers and the public, with dignity, understanding and respect for the right to equality.”

31This provision refers to unequal or disrespectful treatment on the basis of race, gender, disability and other prohibited grounds of discrimination under the Human Rights Code.

32It does not cover an allegation that one volunteer committee was treated differently than another volunteer committee.

33Even if people were deliberately excluded from the party, that would not amount to a breach of the Code of Conduct.

(B) Is unfair reporting about the Complainant’s credit card use (assuming this occurred) a breach of the Code?

34No.

35The reports were made by the Chief Administrative Officer/Operations Manager, who is not subject to the Council Code of Conduct. An Integrity Commissioner has no jurisdiction over a Complaint about the Chief Administrative Officer/Operations Manager.

36While the Mayor is subject to the Council Code, he was not the one commenting on the Complainant’s credit card use. There are no grounds to hold the Mayor responsible for things the Chief Administrative Officer/Operations Manager said and wrote.

37Section 3, subsection 3, of the Code of Conduct does not make a Council Member responsible for the content of staff reports. While a resident might disagree with the content of a staff report, there is no remedy under the Council Code of Conduct.

38To the extent that the Complainant feels that she has been unfairly treated on the public record, I note that this report, which sets out the Complainant’s concerns and her position, is also on the public record.

(C) Do I have jurisdiction over a complaint against the staff arising under the Employee Code of Conduct?

39No.

40An Integrity Commissioner does not have authority to receive complaints about municipal employees. I do not have jurisdiction over the Employee Code of Conduct.

41The Employee Code clearly states: “It is the responsibility of management to ensure that each incident of suspected wrongdoing is investigated.”

42A concern about the conduct of a Township employee may be raised with the Chief Administrative Officer/Operations Manager, and a concern about the conduct of the Chief Administrative Officer/Operations Manager may be raised with the Council. In either case, the Municipal Act does not give the Integrity Commissioner a role to play.

CONCLUSION

43There are insufficient grounds to continue to consider the Complaint.

RECOMMENDATION

44I recommend that this report be received.

CONTENT

45Subsection 223.6(2) of the Municipal Act states that I may disclose in this report such matters as in my opinion are necessary for the purposes of the report. All the content of this report is, in my opinion, necessary.

Respectfully submitted,

Guy Giorno
Integrity Commissioner
Township of North Algona Wilberforce
April 5, 2019

RELEVANT PROVISIONS OF BY-LAWS

Council Code of Conduct, By-law Number 2016-15

Section 3 (part)

1. Rules of Etiquette - Meetings

a) The professional and personal conduct of members of Council must be above reproach and avoid even the appearance of impropriety. Councillors shall refrain from abusive conduct, personal charges, verbal attacks or gossip upon the character or motives of municipal employees, Councillors, committee appointees or the public. All dealings between Council, committee appointees, municipal employees and the public are to exhibit a high degree of professionalism and are to be based on honesty, respect, impartiality and fairness. Service to the public is of paramount importance.

b) The Chairperson should never allow Councillors or delegations at Council or Committee of the Whole to publicly criticize identifiable employees. It is the responsibility of the Chair to ensure that both parliamentary procedure and rules of etiquette are observed by those in attendance.

3. Behaviour of Members of Council

Every member of Council shall act all times in conformity with the principles listed below, and shall ensure that the work environment is a place where these principles are respected.

a) Treat Every Person with Dignity, Understanding and Respect

Members of Council shall abide by the provisions of the Human Rights Code and, in doing so, shall treat every person, including other Members of Council, corporate employees, individuals providing services on a contract for service, students or placements, volunteers and the public, with dignity, understanding and respect for the right to equality.

Section 6 (part)

5. Refusal to Conduct Inquiry or No Penalty Imposed

5.1 If the Integrity Commissioner is of the opinion that the complaint is frivolous, vexatious or not made in good faith, or that there are no grounds or insufficient grounds for an inquiry, the Integrity Commissioner shall not conduct an inquiry and shall provide a written report to Council outlining the reasons for not doing so.

Employee Code of Conduct, By-law Number 2016-12

Section 2 (part)

MANAGEMENT RESPONSIBILITY as part of effective management, each Department must ensure that its employees are aware of, and act in compliance with, this Code and its related policies. The management of the Township is accountable for protecting the assets of, and the public trust in, the Township. Towards this end, management must make every effort to establish and maintain adequate systems, procedures and controls to prevent and detect fraud, theft, breach of trust, conflict of interest, bias and any other form of wrongdoing.

Upon receiving written disclosure of an actual or potential breach of the Code, the departmental Head shall either determine that no breach exists or take reasonable steps to ensure that the matter is addressed in the appropriate manner. It is the responsibility of management to ensure that each incident of suspected wrongdoing is investigated.

Section 6 (part)

POLITICAL AND COMMUNITY ACTIVITY to ensure public trust in the Township, employees must be, and appear to be, both personally impartial and free of undue political influence in the exercise of their official duties. The Township encourages employees to take part in community activities. However, it is important to bear in mind that such service may, at times, place the employee in a real or perceived conflict of interest situation. As a member of a community board or external committee, the employee must continually assess their involvement and expected decision-making responsibilities in light of their employment with the Township. To ensure the existence and appearance of objectivity, employees should abstain from involvement in those decisions or votes that would create, or be seen to create, a conflict of interest. An employee must notify the Township management of such potential or actual conflict of interest situations. Similarly, employees engaged in political activities must take care to separate those personal activities from their official positions. Employees may participate in political activities at the federal, provincial, municipal levels providing such activity does not take place during work hours or utilize Township assets, resources or property. Notices, posters or similar material in support of a particular candidate or political party are not to be displayed or distributed by employees on Township work sites or on Township property. as part of effective management, each Department must ensure that its employees are aware of, and act in compliance with, this Code and its related policies. The management of the Township is accountable for protecting the assets of, and the public trust in, the Township. Towards this end, management must make every effort to establish and maintain adequate systems, procedures and controls to prevent and detect fraud, theft, breach of trust, conflict of interest, bias and any other form of wrongdoing.