TOWNSHIP OF NORTH ALGONA WILBERFORCE integrity commissioner, GUY GIORNO

Citation: McLeod v. Brose, 2019 ONMIC 6 Date: April 6, 2019

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.

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 2

SUMMARY 3

BACKGROUND 3

RELEVANT PROVISIONS OF BY-LAWS 4

Council Code of Conduct, By-law Number 2016-15 4

Respect in the Workplace Policy, By-law Number 2018-04 5

PROCESS 5

ISSUES RAISED 5

ANALYSIS AND FINDINGS 5

(A) Does the Code of Conduct cover the Complainant’s allegation that Council Members have not replied to correspondence or scheduled a meeting with the Committee? 5

(B) Do I have jurisdiction over a complaint against the CAO/OM arising under the Respect in the Workplace Policy? 6

CONCLUSION 6

RECOMMENDATION 6

CONTENT 7

THE COMPLAINT

1. The work of the 2018 Canada Day Committee (alternatively referred to as the Canada Day 2018 Organizing Committee and the Celebrate Canada Day Committee) has been the subject of various delegations, communications and reports to Council. It has also been the subject of discussion by the Recreation Committee and by Council.

2. Ms Margaret McLeod (the Complainant) says she is writing on behalf of the 2018 Canada Day Committee because the Council has not given the Committee members an opportunity to respond to what they believe to be unfair comments about their performance during 2018.

3. The Complaint also alleges that the Chief Administrative Officer/Operations Manager, in comments about the 2018 Canada Day Committee, contravened section 3.1 of the Respect in the Workplace Policy. (I note for the record that the CAO/OM maintains everything he said was accurate.) The Integrity Commissioner does not have authority to apply the Respect in the Workplace Policy to Township employees.

SUMMARY

4. I only have jurisdiction to consider complaints about Council Members (and members of local boards).

5. The Council Code of Conduct does not require Council Members to respond to particular communications and does not require Council to give people an opportunity to speak. How and whether to respond to correspondence is a political matter, not a Code of Conduct matter. The addressing of Council by delegations is covered by the Procedural By-law.

6. I have no authority to entertain a complaint under the Respect in the Workplace Policy. Such a complaint may be made to the CAO/OM or, where the complaint involves the CAO/OM, may be made to the Mayor.

7. I find insufficient grounds for further inquiry into this Complaint. The file is closed.

BACKGROUND

8. According to the Complainant, members of the 2018 Canada Day Committee want an opportunity to defend themselves and to correct comments about the 2018 Canada Day celebration.

9. The comments that give rise to the Complaint were initially made in an oral report at the January 14 meeting of the Recreation Committee and subsequently repeated or confirmed in other meetings. I note again that the CAO/OM stands by the accuracy of the comments in his reports.

10. The Complainant provides a point-by-point rebuttal of comments made about the operation of 2018 Canada Day Committee. I have carefully read her submission but, because of how I am disposing of the Complaint, it is unnecessary for me resolve any factual dispute between the Committee and the Council/CAO/OM.

11. According to the Complainant:

“We have attempted to have council call a meeting to correct the false information being presented to council and the PUBLIC. I don’t believe a Councillor has replied to any of the emails sent to them regarding this issue. We have only received correspondence from the Mayor with further requirements and restrictions regarding a meeting in which we could present our documents and explanations.”

12. Later in the Complaint she explains:

“We have not yet heard from Council as to when they will meet with us. We wish to have the opportunity to explain the false charges and clear our names and correct the understanding of the work of the committee. Our reputations have been maligned. We believe that the Mayor, the Councillors, and the PUBLIC need to know that we did not misuse township funds. This misunderstanding and the false accusations being made publicly, and being defended and repeated by the CAO/OM, need to be cleared up.

“[The 2018 Committee chair] has provided the names of the 2018 Canada Day Committee to the CAO/OM. We would like to clear our names. If we do not, then it appears that we accept the false information given in the CAO/OM’s report and it becomes legitimate.”

13. I repeat that the CAO/OM does not agree that his remarks were false. Because of how I am disposing of this Complaint it is unnecessary for me to invite the CAO/OM to respond. It is therefore important to understand that the CAO/OM never had an opportunity to participate in this proceeding. It is also important to note that the Committee’s allegations are only allegations and I am not making any findings on them.

14. Finally, I note that the Committee members’ concerns are already reflected, or at least partly reflected, in various Council agenda materials and are, therefore, already on the public record.

RELEVANT PROVISIONS OF BY-LAWS

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

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.”

Respect in the Workplace Policy, By-law Number 2018-04

Section 5, subsection 2.3 (part)

“NOTE: Where your complaint is against the CAO, your complaint should be submitted to the Mayor.”

PROCESS

15. Ordinarily I follow a process in which the Respondents receive notice of the Complaint and are given an opportunity to respond, and then the Complainant receives the Response(s) and is given an opportunity to reply.

16. In this case, I first decided to review the Complaint (including all the background material) to determine whether there are grounds to continue.

17. Based 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.

ISSUES RAISED

18. I have considered the following issues:

(A) Does the Code of Conduct cover the Complainant’s allegation that Council Members have not replied to correspondence or scheduled a meeting with the Committee?

(B) Do I have jurisdiction over a complaint against the CAO/OM arising under the Respect in the Workplace Policy?

ANALYSIS AND FINDINGS

(A) Does the Code of Conduct cover the Complainant’s allegation that Council Members have not replied to correspondence or scheduled a meeting with the Committee?

19. No.

20. The Committee members’ desire to speak to Council is covered by the Procedural By‑law, By-law Number 2015-40, in section 14 (Delegations). The Council Code of Conduct does not cover requests to participate in Council meetings and I have no authority over that issue.

21. The Council Code of Conduct does not say anything about how a Council Member should reply to a communication or even whether a Council Member must reply to a communication. How elected officials choose to deal with incoming correspondence is a political decision for them to make. It is not the Integrity Commissioner’s role to tell a Council Member whether to respond to a communication and the Code of Conduct was not intended to address such a matter.

22. As I observed in Greatrix v. Williams, 2018 ONMIC 6, at paragraph 206:

“It is a matter of political judgement whether, when and how often an elected representative should address a comment from a member of the public, just as it is a matter of political judgement whether, when and how often an elected representative should decide to ignore a comment. As I stated on a previous occasion (Report 2017-02), it is not my place to evaluate the political judgements made by Council Members.”

23. There are insufficient grounds to continue to consider this aspect of the Complaint.

(B) Do I have jurisdiction over a complaint against the CAO/OM arising under the Respect in the Workplace Policy?

24. No.

25. The Respect in the Workplace Policy, By-law Number 2018-04, provides no role for the Integrity Commissioner.

26. The Policy says complaints are to be made to the CAO. If a complaint is about the CAO then it is to be made to the Mayor. See section 5, subsection 2.3 of the Policy.

27. Neither the Code of Conduct nor the Municipal Act gives the Integrity Commissioner a role to play in handling a complaint about the CAO/OM.

CONCLUSION

28. There are insufficient grounds to continue to consider the Complaint against Council. I have no jurisdiction over the portion of the Complaint dealing with the CAO/OM.

29. The file is closed.

RECOMMENDATION

30. I recommend that this report be received.

CONTENT

31. Subsection 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 6, 2019