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New code of conduct curtails councillors’ freedom of speech

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In Adjala-Tosorontio
Mar 5th, 2019
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Clause proposed for Springwater already adopted by Tiny, Clearview, Midland and Penetanguishene

A code of conduct is being proposed for Springwater Township that would curtail councillors’ freedom to speak at hearings that make key decisions on land use and development.

A clause in the code developed by a Toronto consultant states that “If Council has taken a position in a Local Planning Appeal Tribunal (“LPAT”) matter and instructed the Township Solicitor to appear at a hearing in support of such position, no member of Council who disagrees with such position, shall give evidence at such hearing or otherwise work against the will of Council in such matter.”

However, the clause adds that, with the consent of the township’s lawyer, a councillor who agrees with the majority decision may give evidence at an LPAT hearing.

The clause was one of several highlighted as problematic at a special council meeting last month by Councillor Jack Hanna, who represents Midhurst but is not a fan of the plan, approved several years ago under former mayor Linda Collins, for the village to grow to 30,000 people.

Hanna suggests rewording

“This regulation prevents me from being able to assist my constituents,” Hanna told Jeffrey Abrams of Principles Integrity, which has been retained by Simcoe County to act as integrity commissioner for the county and its 16 municipalities.

Hanna suggested the clause be reworded so a councillor could give evidence while making clear that he or she does not represent council’s view on the matter and is speaking as a private citizen.

Abrams – a lawyer and former city clerk in Vaughan – disagreed. “You are in a privileged position to influence the decisions of this council,” he told Hanna. The job of councillors is to persuade colleagues of the validity of their position, he said. However, the code of conduct would not override a subpoena, he said.

Abrams pointed out other sections of the code he felt Hanna would not like because they restrict councillors’ comments – and he appeared to be right. Hanna’s view is that a councillor’s role is to represent his constituents, while Abrams urged that a councillor’s duty is to be a team player representing council. (See Springwater’s YouTube channel for the full discussion.)

Four municipalities – Tiny, Clearview, Midland and Penetanguishene – have already approved a code with the LPAT clause, adding some language to allow for a councillor to assist with mediation.

But the county’s remaining 11 municipalities – Wasaga Beach, Ramara, Bradford-West-Gwillimbury, Collingwood, Essa, Innisfil, Severn, Adjala-Tosorontio, New Tecumseth, Oro-Medonte and Tay, plus Simcoe County – have not included it.

To what end?

The code-of-conduct muzzle may be a “made-in-Simcoe-County” measure, as I have not yet found it in any code for a municipality outside the county. Not in Vaughan, Toronto, Brampton, Windsor, Barrie – not even in Kingston and Mississauga that have retained Principles Integrity as their integrity commissioner.

CORRECTION: A representative of Principles Integrity, attending Springwater council’s March 20  meeting, cited Mississauga as the source of the LPAT clause. The Mississauga clause reads as follows: ‘Members shall not make representations of any kind to other tribunals such as the OMB but may request Council to instruct the City Solicitor to appear in a case before such tribunal.” Added, March 29 2019

To what end, one wonders, has this prohibition been drafted? It has been adopted by four small municipalities. In my view it chooses an authoritarian form of government over a democratic one.

Yes, a councillor should be bound by the majority decision, but he or she should not be gagged by it. There are procedural controls to stop a debate going on forever at the council level. But the councillor should be free to express contrary views where other forums for debate arise.

This very issue arose in Adjala-Tosorontio during the last term, when then-councillors Floyd Pinto and Bob Meadows testified as private citizens at an OMB hearing into a quarry application. Nothing in the township’s code precluded them from doing so.

“That’s against the laws of the land,” Meadows said when I read Springwater’s proposed LPAT clause to him. “You’re a councillor – but you’re also a resident – they can’t prohibit you from speaking.”

‘Voters saw through the whole thing’

Pinto and Meadows were in a minority of two on a deeply divided Adj-Tos council. Among the issues, an OPP investigation into staff and council benefits which resulted in police finding no criminality but calling out the township for disregard for bylaws and procedures, as well as poor record-keeping.

Meanwhile, Pinto and Meadows became the subject of several integrity commission investigations.

“We got railroaded by our own council,” Meadows said in an interview. “I thank God for the intelligence of our voters because they saw through the whole thing.”

Pinto was elected mayor last October despite having been found guilty of breaking the code of conduct and harassment, and Meadows, who was cleared of harassment, was elected deputy mayor.

Meadows said it cost him $10,000 to defend himself. “Anybody can be an integrity commissioner,” he complained, noting that the lawyer retained as integrity commissioner on the harassment case against him had been disbarred for four months in 2010 for misappropriation of funds. “This is someone who was looking into my integrity!”

Nevertheless, he agrees a code of ethics is necessary.

In a better world, councillors wouldn’t have to be told to be polite to each other and staff, not to benefit personally from their council position, not to hide behind closed doors, not to take municipal property home, and (my favourites) to avoid waste, abuse and extravagance (from the Ramara and Barrie codes).

Sections on gifts and hospitality vary from municipality to municipality. Councillors are allowed to accept gifts, but required to disclose them. Some municipalities specify an upper limit on the value of a gift a councillor may accept – Ramara and Brampton set it at $50 a year – but that’s at the low end of the spectrum.

The Principles Integrity template now before Springwater, and applied in several other Simcoe County municipalities, offers a sliding scale.  “Tokens” like pens and mugs are deemed of zero value and need not be recorded; art, business meals, and business hospitality worth up to $100 may be accepted but should be recorded; and official (government) hospitality worth up to $500 may be accepted but should be recorded.

Integrity commissioner approval is required for acceptance of a “token” worth up to $500, and up to $750 in business hospitality. See the draft code for a box explaining the complexities.

Springwater DRAFT Code of Conduct

At the February 20, 2019 council meeting, Deputy Mayor Jennifer Coughlin brought up the example of a tubing event to which township representatives and their families are invited. She wondered when it’s appropriate to accept hospitality for family members.

Abrams noted that the purpose of the hospitality has to be township business-related. “I think I’d want to look at the particulars of it,” he said.

Springwater Ward 4 Councillor Anita Moore told Abrams she’d been approached by several developers. She was uncertain as to the best venue for discussion and appropriateness of meeting one-on-one, of having a meal.

“I wasn’t sure maybe whether two council people should be present to increase the transparency,” she said. “Just so that it looks better, that’s all.”

Abrams replied that the Principles Integrity code allows discussion over a meal. “I should be clear, other codes say that a cup of coffee is too much. We don’t believe that that is an appropriate standard… We know that a municipality is not a business but there is business-like behavior that is appropriate.”

In response to a question from Allen, Abrams said hospitality at conferences is acceptable. “It’s on the conference program, everyone attending at the conference can go to the suite – that’s official hospitality,” Abrams said.

‘No different than a bribe”

Meadows disagrees. He attended the recent Rural Ontario Municipalities Association conference in Toronto and felt comfortable attending the Simcoe County Warden’s dinner because that’s official. But he placed the hospitality put on by businesses that stand to get large contracts from municipalities in a category that wasn’t acceptable. “I saw people being wined and dined by engineering firms,” he said. “I went to Mr. Submarine.”

“I don’t care if it’s $15,” Meadows added. “That’s totally inappropriate. Anything to do with monies, gifts, to me is no different than a bribe. Because you’re influencing a vote.”

Meadows also said he would not meet one-on-one with a developer. The practice now at Adjala-Tosorontio is for developers and others who want to provide information to be invited to meet all of council together, in public.

I know that it can seem rude to decline an invitation or gift that’s offered without ill-intent. But if there’s a code of ethics that prohibits acceptance, it makes it much easier to pay one’s own way and steer clear of any appearance of influence. I don’t understand how anything else can be justified.

There does seem to be one very inappropriate point being made in the Principles Integrity template proposed for Springwater: “Members (of council) who post blogs should recognize that the Canadian Association of Journalists has identified the ethical conflict faced by journalists holding elected public office. It is recognized that there is an irreconcilable conflict in holding both roles.”

This has no place in a code of conduct for members of council (unfortunately it has already been adopted in the codes for Simcoe County, Tiny, Clearview, Penetanguishene and Midland).

It is written for journalists who are elected to public office. Many would clearly have a conflict in writing as journalists (supposedly impartial observers) about the affairs of a council to which they had been elected. A science reporter would probably be in the clear. A real estate specialist would not.

There is absolutely no conflict for municipal councillors who blog or broadcast or podcast if they are doing so as councillors. No one expects them to be impartial observers.

As councillors, they are our representatives, with an obligation to report back. Those who provide regular updates are to be applauded. I hope this code will not be used to restrict Hanna – or any other councillor – from writing a regular column in the Springwater News. Unfortunately, Hanna has already indicated he thinks it will.

Councillors voted 6-1 (with only Mayor Allen dissenting) to defer approval of the code of conduct pending further information from Abrams.

Council meets Wednesday March 6 (watch it live on Wednesday or archived on YouTube). However, this item has been held over till Wednesday March 20, as Councillor Wanda Maw-Chapman is on vacation.

Previously

In Adjala-Tosorontio – distinct choices 

4 Responses to “New code of conduct curtails councillors’ freedom of speech”

  1. Bill French says:

    I totally agree with Hanna’s suggestions. The problem is that when you allow a third party who is a self deemed expert (because he happens to be around for a long time) dictating the rules of local Council, that impacts democracy. The policy is far too reaching and takes more control away from elected officials. The Code is a good idea but the local municipalities that have them have spent thousands of dollars and did not accomplish anything. The Code of Conduct, since we are dealing with supposed adults, should simply read, “Behave, be Respectful and Work and Represent your constituents best interests at all times”.

    • Gerald. Duerr says:

      Is a code of conduct not supposed to simply regulate the behaviour of a group in this case council?
      It should not be written to handcuff an individual in stating his or her views on a subject. Is a council member not elected to represent constituents. By quietening this elected individual you are also quietening the voters. We must not restrict voted officials to express their and constituents opinions like it or not. By allowing this clause in the code we are opening the door to much further restrictions in the future.

  2. Paul Smith says:

    As a constituent of Jack Hanna’s how can I and other constituents in Ward 5 be sure that Jack is properly representing our Ward when this Code essentially muzzles him. The township continues to deprive of us of all necessary tools to fight this ill conceived and underhanded development.

  3. Peter Lomath says:

    Someone needs to take a long hard look at “Principles Integrity” and our councils need to investigate the relationships between who that entity “worked with” to develop these codes of Conduct.
    First I’m fed up with the senior levels of government allowing every municipality to write their own “laws” and choose their own “judges”. We now have highly paid “lawyers” acting as in camera meeting investigators when the Ontario Ombudsman will undertake the same process without further charges to municipalities. Now we have each municipality writing their own codes of conduct in conjunction with the very entity who will provide oversight of the code. Our clerks are given carte blanche to determine the form of elections and it was so bad in Clearview that every voter was FORCED to provide their birthdate and go through a non-accessibility-compliant Google recaptcha process as a condition (set by the clerk) for being able to vote! If you could not get through those steps then you were denied the ability to vote.
    Interestingly the extremely weak Code of Conduct written by Clearview staff for Clearview STAFF is not subject to oversight by an Integrity Commissioner, instead it is handled very conveniently by the same staff members to which it applies!
    If you were under the misunderstanding that the newly implemented Code of Conduct for councillors was in most part related to THEIR conduct or integrity – You are forgiven – it’s just the next step in protecting NON-ELECTED civil servants from any oversight attempts by ELECTED parties to ensure that Ontarians receive value for their tax dollars from “professional” public sector employees.
    A layman’s read of the document proudly created by Principles Integrity and the “Township of Clearview” (Read – Staff?) now handcuffs any councillor who DARES to question the actions or undefined “PROFESSIONALISM” of staff and leaves taxpayers open to writing open-ended checks to cover the costs of an investigation and ruling by Principles Integrity when a staff member cites “Breach of conduct”.
    What is needed in Ontario is a COMMON Code of Conduct for BOTH staff and Council and put in place across ALL Ontario municipalities by the Province AFTER consulting with Ontarians as to what constitutes appropriate levels of “bribery and corruption” and administered by the Ontario Ombudsman. Having as many as 440 different codes of conduct being administered by different commissioners who have no common legal education or baseline of determination means that every municipality operates under a non-standard set of community values.
    The Clearview Code of Conduct developed jointly by Principles Integrity (chosen by staff and council to be the Integrity Commissioner) effectively being the “judge and jury in any investigation” and the township who are the prospective “miscreants” breaching the code, is akin to letting our criminals choose their judge and then sit down with him/her to develop the laws to which they will be subject and over which the judges have jurisdiction! INSANITY for TAXPAYERS in an educated society!
    In January I filed a formal complaint and request for an investigation with Principles Integrity over a matter of perceived financial improprieties in Clearview. Since then all I have had in response is “bafflegab” and a refusal to either proceed or a refusal to act that would allow me to take the matter onward to the Ontario Ombudsman. Initially Principles Integrity could not even confirm the area’s over which they have jurisdiction, only by searching the Internet was I able to confirm that they DID have jurisdiction over my complaint.
    Within the “draft” code of conduct created by Principles Integrity for Clearview there are some extremely concerning limitations on the ability of councillors to represent the concern of citizens by limiting them to not being able to question the advice or “professionalism” of staff members. Needless to add there is no definition of “professionalism” to guide councillors in that area.
    What is “professionalism” as referenced in the Code? That seems to be left up to the Integrity Commissioner to determine. The Merriam-Webster dictionary defines professionalism as “the conduct, aims, or qualities that characterize or mark a profession or a professional person”; and it defines a profession as “a calling requiring specialized knowledge and often long and intensive academic preparation.”
    The closing sections of that Code of Conduct should be very concerning for taxpayers. It takes a majority of 2/3 of councillors to remove/replace Principles Integrity as the commissioner for Clearview which bodes the question – WHY does that condition form part of the Code and is that some form of “payoff” for developing the Code of Conduct?

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