Springwater councillors maintain right to speak out for constituents
CORRECTION – An earlier version of this blog misstated the vote on the ‘LPAT’ clause. AWARE Simcoe regrets the error.
Springwater Township Council adopted a code of conduct last week – but first they eliminated a controversial clause limiting a councillor’s right to speak.
The clause would have stopped a councillor who differs from council’s position on an issue from appearing at a Local Planning and Appeals Tribunal (LPAT, the former OMB) to give evidence or “otherwise work against the will of council.”
Ward 5 Councillor Jack Hanna, who first raised concerns about the code a month ago, read out a list of municipalities that do not have such a restriction. (Locally, Simcoe County, Barrie, Orillia and 12 of the county’s 16 municipalities don’t have it, Midland, Penetanguishene, Clearview and Tiny do.)
A rule that would “try and control and restrict council from representing their constituents is a concern to me,” said Hanna, whose motion, circulated in advance to other councillors, proposed alternative wording. On consideration, he said he would be happy to support getting rid of the clause entirely, if another councillor was willing to put such a motion forward.
Ward 1 Councillor George Cabral, who seconded Hanna’s motion, suggested that had Springwater contracted another consultant as its integrity commissioner, the code of conduct might have looked very different – while still meeting legislative requirements.
“I think it’s important for us to look at what is legislatively required and what is the stuff that’s put in there because you want to,” he said, adding that he felt council was being pushed to adopt a code “not of our own creation.”
The province’s regulation 55/18 under the Municipal Act, which came into effect March 1, 2019, only requires municipalities to have a code with rules in four areas – gifts, benefits and hospitality; respectful conduct; confidentiality; and use of municipal property.
But most codes go well beyond those areas, in effect creating an integrity commission industry in terms of interpretation and enforcement, and also intruding politically on councillors’ choices in terms of how they do their job.
Janice Atwood-Petkovski, of the consultant Principles Integrity, estimated 95 per cent of the provisions in the code of conduct drafted by her firm can be found in at least two or three others. “Certainly we have picked up what we think are the best provisions,” she said, resulting in a “pretty decent model.” But council is under no obligation to adopt anything that doesn’t respond to its situation, she said.
In defence of the LPAT clause, she said the City of Mississauga has had such a clause for a decade. “A lot of municipalities thought it was a helpful rule,” she said. “It’s certainly not an invention of Principles Integrity.”
Petkowski cited a scenario in which a municipality might be paying outside counsel $60,000, $80,000 or $200,000 to present its position at the OMB or LPAT.
She said some municipalities have found it “a point of consternation” if a councillor who disagrees with the majority position presents a contrary position, thus increasing the municipality’s costs.
Allen picked up on the point to express his support for the clause.
“I don’t think that a councillor should work against the majority of council in this case in any capacity,” he said. “It was at the stage of debate in this scenario that the councillor should have convinced sufficient of the councillors to vote the way they believe they should have voted… I think there’s a conflict in going against council when council’s agreed use of taxpayer dollars is in the representation at LPAT by the lawyer.”
Cabral expressed doubt that the testimony of a lone councillor would increase the cost. “That money’s going to be spent,” he said.
He noted that the issue might impact his ward at the north end of the township, where people are concerned about aggregate extraction in Tiny. “I could easily have 500 or 600 people all banding together like they did with this dump (Simcoe County’s Dumpsite 41, defeated in 2009) and feel obligated as their representative to attend.”
But Allen reiterated his stance. “Once a council decision has been made is not the time to go rogue on that decision and argue against the position at LPAT in my opinion.”
Stating that as “the Municipal Act states that councillors should not act against the will of council,” Deputy Mayor Jennifer Coughlin asked, “how would this play out at the LPAT?”
But Atwood-Petkowski corrected her. “The Municipal Act doesn’t say that council members can’t act against the will of council,” she said, “it’s just the code of conduct.”
In the end, Councillors Hanna, Cabral, Perry Ritchie and Anita Moore voted in favour of Hanna’s motion to amend the clause to permit a councillor to testify as a private citizen. Allen, Coughlin and Ward 3 Councillor Wanda Maw-Chapman voted against.
Ward 4 Councillor Anita Moore then moved to remove the clause. “I really feel it’s too grey, too subjective,” she said. Moore’s motion carried unanimously.
Further changes were proposed – Cabral was successful in changing the definition of who should be included as a family member when a councillor declares a conflict of interest (yes to stepchildren and in-laws, no to first cousins, nieces, nephews and co-residents), but not on a motion to lower the dollar amount of gifts and hospitality to be declared by replacing all references to $500 with $300 and all references to $750 with $500.
Atwood-Petkowski said that while some other municipalities may have lower amounts, the value of business hospitality is higher now than a decade ago.
Allen asked whether, if the amounts were lowered, there would be more instances of council members having to go to the Integrity Commissioner to get permission to accept the higher-valued hospitality.
The implication presumably being that there would be higher code-of-conduct-related costs.
“That’s actually a very good point,” Atwood-Petkowski replied.
Cabral withdrew the motion.
Hanna was successful in removing a sentence requiring councillors to “affirm respect” for council’s decision-making processes on the grounds that “you can’t legislate people into affirming respect.”
He also got support on an issue in another code of conduct – directed at members of Springwater boards and committees, namely a clause that requires all media questions to be directed to a township communications officer.
Atwood-Petkowski – whose recent past experience is as solicitor for the City of Vaughan – said the clause clearly was drafted “ in contemplation of organizations that perhaps had more present communications officers… You may want to add, ‘if they’re available’.”
But council voted to remove the provision.
Hanna also suggested removal of the last words in a clause on media communications that states: “… members will treat each other, staff and members of the public with decorum, dignity and respect, and shall avoid messaging that amounts to abuse, bullying or intimidation.”
These are “nasty words we don’t need,” Hanna said, suggesting that the code stay positive and end with the words “decorum, dignity and respect.”
But this prompted an unexpectedly passionate response from Allen.
He said that “in the past there have been some public statements that have been made that contain innuendoes, insinuations and inferences about issues and points of view and motives of other councillors that are misrepresentions and, in some cases, lies which are irresponsible, wrong and inaccurate and potentially slanderous.”
It was not clear what Allen was referring to. He urged retention of the entire clause and the majority of council supported him, with Cabral, Hanna and Ritchie voting against.
A moment of harmony occurred when Hanna proposed an additional clause requiring councillors to do their best to tell the truth: “Members of council shall endeavour to only advance information to the public, staff and council that they are reasonably certain is accurate.”
“I like that provision,” Atwood-Petkowski said.
After some debate about the meaning of “reasonably,” Hanna’s motion passed.
A video of the May 20 2019 Springwater Council meeting can be found online – with the code of ethics debate running from 16:40 to 2:09:06 minutes.