Re Meadows and Pinto, 2021 ONMIC 35

Township of Adjala-Tosorontio Integrity Commissioner, Guy Giorno

Citation: Re Meadows and Pinto, 2021 ONMIC 35 Date: December 31, 2021

Report on Complaints

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://adjala-tosorontio.civicweb.net/document/29064/Regular%20Council%20-%2012%20Jan%202022.pdf?handle=60D4F8EF0A084228B357CA4603999B02 (see minutes of January 12, 2022, item 10.3, RES-28-2022)

TABLE OF CONTENTS

The Complaints. 3 Summary. 3 Process Followed. 4 Positions of the Parties. 6 Issue and Analysis. 6 Conclusion. 8 Content 8 Appendix: Excerpts from Council Code of Conduct 9

The Complaints

1During a one-week period in late 2019,¹ three different individuals submitted a total of eight requests for inquiries. Five were complaints under the Council Code of Conduct, and three were applications under the Municipal Conflict of Interest Act.

2Two of these Complaints, assigned File Nos. CC-2019-06 and CC-2019-07, were brought by a then-employee of the Township. Because of the disposition of the Complaints, it is not necessary for this report to name the Complainant. One Complaint was brought against Deputy Mayor Bob Meadows. The other Complaint was brought against Mayor Floyd Pinto.

3After receipt and review of the submissions of the parties, pandemic delays, and examination of the many documents at issue in this proceeding, the inquiry continued with an interview of the Complainant. Next, I asked the Council for consent that would allow me to obtain relevant information in the possession of the Township’s solicitors. Council provided consent on October 13, 2021.² As a result of information obtained from the solicitors earlier this month, I have determined that I should exercise my discretion to terminate the inquiries and dismiss both complaints.

Summary

4The Complaints were submitted while the individual was employed by the Township.

5While the Complaints allege contraventions of the Code of Conduct, the allegations involve workplace issues and are inseparable from the employment relationship.

6During the course of the inquiry, the Complainant’s employment with the Township ended. I was aware of this development, and the Complainant’s interview was conducted when the Complainant was a former employee. This month, however, I received and examined a release that the Complainant executed.

7The signing of a release does not invariably bring an end to Code of Conduct proceedings, but is relevant to the exercise of the Integrity Commissioner’s discretion to conduct and to continue an inquiry. In this case, I have determined that it is appropriate to end the inquiry and dismiss the Complaints.

8To be transparent, I am setting out the reasons in this report.

Process Followed

9In operating under the Code, I follow a process that ensures fairness to both the individual bringing a Complaint (Complainant) and the Council Members responding to the Complaint (Respondents).

10This fair and balanced process includes the following elements: Each Respondent receives notice of the Complaint and an opportunity to respond. The Complainant receives the Respondent's response and 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.³ 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. I will, however, if necessary, ask a party to clarify a Complaint, Response or Reply.

11Both Complaints were submitted November 27, 2019.

12The first Complaint alleged that Deputy Mayor had contravened sections 6.15.4, 6.16.3, and 6.16.5 of the Code of Conduct. The second Complaint alleged a contravention of section 6.16.6 by the Mayor. The text of relevant provisions of the Code appears in the Appendix.

13Each Respondent was sent a Notice of Inquiry on December 6. Without identifying the parties to the Complaints, on December 9, I notified the Clerk that I had opened these new files.

14In the Complaint involving the Deputy Mayor, the Notice of Inquiry indicated that I was exercising my discretion to inquire into the allegations under sections 6.15.4 and 6.16.5 of the Code, but not the allegation under section 6.16.3. I declined to inquire into the allegation under section 6.16.3 because the allegations in the Complaint, even if proved to be true, did not amount to maliciously or falsely injuring reputation or prospects, or amount to failure to show respect for professional capacities. (See text of section 6.16.3 in the Appendix.)

15The Mayor responded December 7. The Deputy Mayor responded December 15. The Complainant replied December 17.

16As explained above, six other complaints and applications arrived at the same time as these Complaints. Additional complaints were received into the New Year.

17On March 17, 2020, Ontario declared a state of emergency. The next day, Simcoe County declared a state of emergency. One day following, the Mayor declared a state of emergency in Adjala-Tosorontio.

18During the state of emergency, having regard to the impact of COVID-19 on both residents and municipal governments, I originally suspended processing of Code of Conduct complaints.

19Subsequently, upon further review, I determined that Ontario Regulation 73/20, which conferred discretion to suspend certain proceedings during the COVID-19 emergency, did not apply to code of conduct inquiries by municipal Integrity Commissioners.⁴ (During consultations on Ontario Regulation 73/20, the Government was asked to include Integrity Commissioners conducting code of conduct inquiries, but decided not to do so.)

20However, because people in communities across Ontario were still dealing with the pandemic, I proceeded slowly and gave first priority to certain inquiries that were appropriately dealt with sooner. They included Pinto v. Anderson, 2020 ONMIC 9, Anderson v. Bays, 2020 ONMIC 10, and Anderson v. Pinto, 2020 ONMIC 11. These inquiries were conducted under the Municipal Conflict of Interest Act, so their gravity was obvious.

21An Integrity Commissioner’s Municipal Act discretion to conduct inquiries includes the discretion to order the sequencing of multiple inquiries. An Integrity Commissioner needs this flexibility, not only because the discretion and operational independence conferred by the Municipal Act require it, but also so that the Integrity Commissioner can handle inquiries in a reasonable, fair, efficient, and financially responsible manner. See Sinnott et al. v. McConkey, 2021 ONMIC 4, at para. 154.

22Under subsection 223.3 (3) of the Municipal Act, I delegated to Paul Burbank, a lawyer who works with me, the authority to conduct additional interviews. He interviewed the Complainant.

23At some point in this process,⁵ the Complainant left the Township and accepted employment elsewhere.

24I determined that it would be important to obtain relevant information in the possession of the Township’s solicitors. In a status report prepared September 28, 2021, I asked for Council’s consent. Council consented on October 13.

25On December 8, I obtained a copy of a release signed by the Complainant.

Positions of the Parties

26Given the disposition of these Complaints, I am not setting out the parties’ positions in any detail. All parties provided numerous documents, and detailed submissions, to support their positions. The Respondents maintain that they complied with the Code.

Issue and Analysis

27The issue presented by the release is whether I should continue with the inquiry.

28An inquiry is not launched automatically when someone makes a complaint. Subsection 223.4 (1) of the Municipal Act uses the word “if” to indicate that an Integrity Commissioner possesses discretion:

This section applies if the Commissioner conducts an inquiry under this Part,

(a) in respect of a request made by council, a member of council or a member of the public about whether a member of council or of a local board has contravened the code of conduct applicable to the member; or

(b) in respect of a request made by a local board or a member of a local board about whether a member of the local board has contravened the code of conduct applicable to the member.

[emphasis added]

29Some municipalities have adopted protocols or procedures that tell Integrity Commissioners how to conduct inquiries.⁶ Many such protocols and procedures expressly recognize that an Integrity Commissioner may decline to conduct an inquiry and may terminate an inquiry at any point.

30The Township of Adjala-Tosorontio has not specified a procedure for Code of Conduct inquiries. Nonetheless, in my view, the Municipal Act is sufficient authority for Integrity Commissioners to exercise the discretion to conduct an inquiry, to decline to conduct an inquiry, to formulate the allegations to be investigated in an inquiry, and to end an inquiry at any point: see Di Biase v. Vaughan (City), 2016 ONSC 5620, at paras. 37-39.

31To be clear, the fact that someone ceases to be an employee does not affect the ability to bring or to continue a Code of Conduct complaint. The Act says “a member of the public” may file a complaint. This includes a non-employee, an employee, and a former employee. Everyone is free to access the Integrity Commissioner process.

32Further, while Integrity Commissioners are accountability officers of municipalities,⁷ they operate independently of the municipalities that appoint them.⁸ One practical implication of Integrity Commissioner independence is that a municipality cannot restrict its employees’ and former employees’ access to the Code of Conduct process. For example, a municipality cannot ask or tell an employee or former employee to withdraw or not to file an Integrity Commissioner complaint: Re Madawaska Valley (Council Member), 2018 ONMIC 10. A municipality should be neutral in the Code of Conduct process, and not take sides for or against the making of a complaint and the conduct of an inquiry.⁹ A municipality cannot sign an agreement to “settle” an Integrity Commissioner proceeding.¹⁰ Indeed if parties, without the participation of the Integrity Commissioner, purport to reach agreement to end a Code of Conduct proceeding, an Integrity Commissioner may disregard that agreement.¹¹

33That is not what happened here. This case is very different than Re Madawaska Valley (Council Member). In this case, nobody was purporting to settle a Code of Conduct complaint outside the Integrity Commissioner’s purview.

34Instead, what happened here, as occurs regularly in workplaces across the Province, was that parties reached an agreement to resolve, and put behind them, all workplace and employment issues. As an expression of that agreement, the release signed by the Complainant is not binding on an Integrity Commissioner, but it is relevant to the exercise of an Integrity Commissioner’s discretion.

35While they were filed under the Council Code of Conduct, these Complaints revolve around workplace treatment and workplace issues. The submissions of the parties, the documentary evidence, and the interview of the Complainant make this clear. Lying at the core of the Complaints is how an employee was (allegedly) treated by two Council Members.

36The release signed by the Complainant covers not just the Township but also Council Members. The release covers all employment-related occurrences and “specifically includes … any allegations of …. harassment …”

37By signing this document, the Complainant agreed to release the Township, its employees and agents, and Council Members, “from [claims of] all discriminatory, harassing or related misconduct against me …”

38It is clear to me that the release encompasses the alleged conduct that forms the basis of the Code of Conduct complaints.

39While not binding on an Integrity Commissioner, the release is obviously relevant to the exercise of discretion. Given the declared intention, and agreement, to walk away from claims related to treatment in the workplace, continuing to explore these claims is not, in my view, in the public interest and is not, in my view, a prudent allocation of resources within a relatively small municipality experiencing a very high volume of Integrity Commissioner referrals.

40I am exercising my discretion to end the inquiry and dismiss the Complaints. I do not find that either Respondent contravened the Code of Conduct.

Conclusion

41The Complaints are dismissed. There is no finding that the Code of Conduct was contravened.

Content

42Subsection 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 Adjala-Tosorontio December 31, 2021

Appendix: Excerpts from Council Code of Conduct

6 PROCESS

6.15 Communication with the Media and Public

6.15.1 The Mayor and Members of Council are the public face of the Township and have the prime responsibility for dealing with the media regarding Council matters. The Chief Administrative Officer, represents the administrative function of the Township and has the prime responsibility for dealing with the media regarding administrative matters. Notwithstanding, Department Heads upon the direction of the Chief Administrative Officer may respond to media enquiries regarding administrative matters.

6.15.2 All Members shall accurately and adequately communicate the attitudes and decisions of Council, even if they disagree with Council’s decision, such that respect for the decision-making process of Township Council is fostered.

6.15.3 Members shall acknowledge that official information related to decisions and resolutions made by Council will normally be communicated to the public and to the media by the Council as a whole or the Mayor as Head of Council or by those so designated.

6.15.4 Members shall convey information concerning adopted policies, procedures, and decisions of Council openly and accurately, whereas, confidential information will be communicated only when authorized by Council and in accordance with applicable legislation.

6.15.5 Members shall respond to enquiries about any matter dealt with during a Closed Meeting of Council, prior to it being reported publicly, shall be “this matter is still under investigation”, “no comment”, or words to that effect.

6.15.6 The release of any information about matters dealt with by Council at a Closed Meeting shall be by the Mayor or delegate.

6.16 Council and Staff Roles and Responsibilities

6.16.1 Members are elected legislators and representatives of all constituents. Staff are responsible for implementing the decisions of Council and ensuring the efficient and effective operation of municipal services. Mutual respect and cooperation are required to achieve the Township’s corporate goals and implement the Council’s strategic priorities.

6.16.2 Staff are to recognize that Members have been duly elected to serve the Township as a whole and respect the role of Council in directing the actions of the Township.

6.16.3 Members are to be respectful of the role of Staff to advise based on political neutrality and objectivity and without undue influence from any individual Member or faction of the Council. Accordingly, no Member shall maliciously or falsely injure the professional or ethical reputation, or the prospects or practice of Staff, and shall show respect for the professional capacities of the Staff of the Township.

6.16.4 Council directs staff through its decisions as recorded in the minutes, resolutions and by-laws. Staff, under the direction of the Chief Administrative Officer, are responsible for implementing the decisions of Council and ensuring the efficient and effective operation of municipal services.

6.16.5 Only Council as a whole and no single Member has the authority to direct any Staff member to carry out a particular function, approve budget, policy, and other such matters, unless specifically authorized by Council. Members are, however, encouraged to contact Staff when they have questions or are seeking clarification about a report, service or program. Any such requests of Staff must align with services and information that would normally be available to any Township resident.

6.16.6 Members shall not compel Staff to engage in partisan political activities or be subjected to threats or discrimination for refusing to engage in such activities. Nor shall any Member use, or attempt to use, their authority or influence for the purpose of intimidating, threatening, coercing, commanding, or influencing any Staff member with the intent of interfering with that person’s duties.

6.16.7 Any questions or issues surrounding operational concerns or complaints, excluding basic issues shall be directed to the Chief Administrative Officer, who will then direct the questions or issues to the appropriate Department Head or Staff.

Footnotes

1. 1The complaints and applications were received between November 27 and December 3.
2. 2“That the Integrity Commissioner be authorized to contact the Township Lawyers BLG with regard to get the information with regards to file 2019-07 and 2019-01.” RES-348-2021, item 6.3, at p. 3 of Minutes of Special Council Meeting (October 13, 2021), online, shorturl.at/kCOQ6
3. 3I typically redact personal information such as residential addresses and phone numbers.
4. 4On the other hand, O. Reg. 73/20 did, in my view, apply to Municipal Conflict of Interest Act inquiries of Integrity Commissioners.
5. 5To avoid unnecessary identifying detail, some passages of this report are deliberately vague.
6. 6A local example is the County of Simcoe Council Code of Conduct Complaint Protocol, Schedule A to the Council Code of Conduct. A particularly clear and comprehensive model is the County of Dufferin Complaint Protocol under the Council Member Code of Conduct, online, https://www.dufferincounty.ca/sites/default/files/clerks/2021-%20Complaint%20Protocol.pdf
7. 7Municipal Act, subs. 223.3 (6).
8. 8Municipal Act, subs. 223.3 (1).
9. 9Re Madawaska Valley (Council Member), 2018 ONMIC 10, at para. 46.
10. 10Ibid., at para. 51.
11. 11Ibid., at para. 56.