North algona wilberforce township INTEGRITY COMMISSIONER, Guy Giorno

Citation: Berndt (Re), 2020 ONMIC 7 Date: June 2, 2020

Report on REQUEST

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://nalgonawil.com/wp-content/uploads/2020/08/Full-8-18-2020-Agenda-1.pdf (Minutes of June 16, 2020, page 7, item 10.1.3, page 11/143 of pdf file)

TABLE OF CONTENTS

The Request 3

Summary. 3

Suspension Unavailable. 3

Process Followed. 4

Findings of Fact 4

Issue and Analysis. 4

Conclusion.. 5

Content 5

The Request

1. This report arises from a request under section 223.4 of the Municipal Act.

2. Section 223.4 provides for an inquiry, “in respect of a request made by council … about whether a member of council … has contravened the code of conduct applicable to the member.”

3. In September 2019, the Township Council requested that I provide my opinion of whether Councillor Melvin Berndt contravened the Code of Conduct in relation to the recount following the 2018 municipal election.

4. The first aspect of Council’s request related to a letter to Council from a candidate in the last election. The candidate felt that Councillor Berndt was inappropriately taking a position that ballots should be destroyed following the recount.

5. The second aspect of the request related to an email from a recount official who stated that Councillor Berndt had telephoned the recount official.

6. Upon receiving the request, I conducted an inquiry.

Summary

7. I do not find that Councillor Berndt contravened the Code of Conduct.

8. I interviewed Councillor Berndt and the other candidate last fall, but since then I have been unable to speak to the recount official.

9. To save taxpayers further expense, I am ending the inquiry.

Suspension Unavailable

10. Communities across the Province are coping with the COVID-19 pandemic. Ontarians face not only the public health emergency but also the shutdown of numerous institutions, services and workplaces.

11. To mitigate the impact on participants in legal proceedings, the Ontario Government made Ontario Regulation 73/20 which gives courts, tribunals and other decision-makers the discretion to extend deadlines in a legal proceedings for the duration of the emergency.

12. However, in making Ontario Regulation 73/20, the Government did not include inquiries by integrity commissioners under codes of conduct. This means integrity commissioners have no authority from the Province to suspend code of conduct proceedings during the COVID-19 emergency.

13. Otherwise, I would have suspended this proceeding until the emergency ends.

Process Followed

14. In operating under the Code, I follow a process that ensures fairness to all parties.

15. At the same time, I am mindful of the fact that the financial impact of integrity commissioner investigations falls entirely on the municipal tax base. Integrity commissioners and codes of conduct have been mandated by the Province without any corresponding provincial funding.

16. Consequently, I conduct a full and fair process that at the same time is efficient and reasonable taking into account the circumstances of each case.

17. Last fall, I interviewed Councillor Berndt and I interviewed the other candidate.

18. I tried, and my office tried, repeatedly, over several months, to contact the recount official. All attempts were unsuccessful.

19. I am ending the inquiry and reporting to Council.

Findings of Fact

20. The candidate and Councillor Berndt have different recollections of what was said between them. The candidate recalls Councillor Berndt wanting the ballots destroyed. Councillor Berndt denies this.

21. They both agree that Councillor Berndt was concerned about another matter: namely that envelopes appeared to have been removed from the ballot box, after which it was resealed.

22. I cannot reconcile the different recollections about destruction. I cannot find as a fact that Councillor Berndt advocated destroying the ballots.

23. As for Councillor Berndt’s contact with the recount official, I have only the Councillor’s recollection that nothing untoward was said. I have been unable to reach the recount official. The recount official’s email only mentions the fact of a phone call. It does not mention what Councillor Berndt said.

Issue and Analysis

24. I have considered the following issue: Did Councillor Berndt contravene the Code of Conduct?

25. No.

26. A finding of contravention must be supported by clear evidence based on the standard of the balance of probabilities.

27. I have before me no evidence of any impropriety in Councillor Berndt’s call to the recount official.

28. Given the competing recollections of Councillor Berndt and the other candidate, I cannot find that Councillor Berndt advocated destroying the ballots.

29. Even if Councillor Berndt did advocate destroying the ballots when he spoke to the other candidate, saying this to another candidate contravenes no rule in the Code of Conduct.

Conclusion

30. I do not find that Councillor Berndt contravened the Code of Conduct.

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

June 2, 2020