The Municipal Act section 223.2 (1) provides that council can make a code of conduct:
Code of conduct
section 223.2 (1) Without limiting sections 9, 10 and 11, those sections authorize the municipality to establish codes of conduct for members of the council of the municipality and of local boards of the municipality. 2006, c. 32, Sched. A, s. 98.
No offence
(2) A by-law cannot provide that a member who contravenes a code of conduct is guilty of an offence. 2006, c. 32, Sched. A, s. 98.
The Municipal act also provides for the application, by an independent integrity commissioner, of the code and for “the application of any procedures, rules and policies of the municipality and local boards governing the ethical behaviour of members of council”
Integrity Commissioner
223.3 (1) Without limiting sections 9, 10 and 11, those sections authorize the municipality to appoint an Integrity Commissioner who reports to council and who is responsible for performing in an independent manner the functions assigned by the municipality with respect to,
(a) the application of the code of conduct for members of council and the code of conduct for members of local boards or of either of them;
(b) the application of any procedures, rules and policies of the municipality and local boards governing the ethical behaviour of members of council and of local boards or of either of them; or
(c) both of clauses (a) and (b). 2006, c. 32, Sched. A, s. 98.
Section 223.4 (1) provides for an integrity commissioner to conduct an investigation regarding alleged breaches of the code of conduct:
Inquiry by Commissioner
223.4 (1) 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
(There is no provision for an integrity commissioner to investigate allegations of breach of “procedures, rules and policies of the municipality and local boards governing the ethical behaviour of members of council”.)
The Municipal act provides for council to mete out a punishment if a report of the integrity commissioner finds a breach of the code of conduct:
Penalties
(5) The municipality may impose either of the following penalties on a member of council or of a local board if the Commissioner reports to the municipality that, in his or her opinion, the member has contravened the code of conduct:
- A reprimand.
- Suspension of the remuneration paid to the member in respect of his or her services as a member of council or of the local board, as the case may be, for a period of up to 90 days.
TSBP clerk’s report CLK116-2016 of October 4, 2016 proposed a code of conduct for council members.
The proposed code is seriously flawed, and is illegal.
The code contains many vague prohibitions that are not legitimate conduct matters and as such are beyond what is allowed by the municipal act.
The code contains many vague prohibitions that are far too vague to be enforceable and are subject to abuse.
The proposed code provides for council to investigate complaints of contravention of the code, a measure clearly not allowed by the municipal act.
The proposed code also provides for council to have a hearing, a measure clearly not allowed by the municipal act.
The proposed code also provides for council to make a decision of whether a member has breached the code, and to write a report of that decision. This is clearly a penalty in the form of public shaming. The Municipal act does not allow for council to apply any penalty at all.
Illegitimate conduct items
Many items do not belong in a code of conduct, including:
2.1.1 Fairly representing the diversity of community views in developing an overall strategy for the future of our Town;
4.4 Official information related to decisions and resolutions made by Council will normally be communicated in the first instance to the community and the media in an official capacity by the Mayor or designate.
7.1 Members of Council will recognize their obligations to follow and respect both the letter and spirit of the provisions of the Municipal Conflict of Interest Act, as amended from time to time.
Vague code and items
4.3 Members of Council will only convey their personal opinions in a manner which demonstrates respect for the decision making process of Council.
First of all this is too vague to be in a code of conduct. It invites abuse. Second it tries to restrain council members from criticizing, directly contrary to the charter guarantee of freedom of speech. It is, simply put, illegal.
5.7 Members shall conduct themselves with appropriate decorum at all times in the community or when making presentations from the Town as a result of the office they hold.
This is too vague and open to overbroad interpretations and abuse to be included in a code of conduct.
There are more too numerous to mention.
Proposed code grants investigation and adjudication powers powers to council that they cannot legally possess.
The proposed code provides for council to have investigation and adjudication power that is in law limited to only an integrity commissioner and is not in law available to council.
Proposed code s. 10.4
In the absence of an Integrity Commissioner being appointed, Council may discuss the complaint and determine by majority if there has in fact been a breach of the Code of Conduct. (emphasis added)
There is no equivalent provision in law for a council to “determine“ guilt.
The law also requires that any integrity commissioner be unbiased:
Act Section 223.3 (1) an Integrity Commissioner who reports to council and who is responsible for performing in an independent manner … (emphasis added)
Council members are politicians, not adjudicators. Council members cannot be relied upon to adjudicate in a fair, unbiased, competent and independent manner. That’s why council members are not permitted by law to adjudicate code of conduct matters or anything similar.
The proposed investigation and adjudication powers are contrary to the Municipal act section 223.
Proposed code Improperly Provides power to adjudicate alleged breaches of statute law
Proposed code section 2.3:
Members of Council shall observe and comply with established provincial and federal legislation and guidelines as they relate to the operations of a municipality.
This combined with the adjudicative powers above would give council powers not only to hold hearings regarding allegation of breach of statute law, but also, incredibly, to hold hearings regarding allegations of breach of provincial and federal “policy”.
Those are clearly beyond the council’s allowed powers.
Improperly Provides punishment powers not legally available to council
The proposed code provides for council to make their findings (of breach or no breach) public.
Proposed code section 10.7
Any outcome will be communicated to the complainant.
Communicating the outcome to the complainant makes the outcome effectively public, and if the finding is “guilty” this is a punishment in the form of a public shaming, way beyond the legitimate powers of council.
The proposed code provides penalty powers that are contrary to the municipal act and that council cannot legitimately possess.
Municipal Act Provisions to quash or declare Null
Municipal act section 273 (1) provides for the court to quash any by-law or resolution for illegality:
Application to quash by-law
Upon the application of any person, the Superior Court of Justice may quash a by-law of a municipality in whole or in part for illegality. 2001, c. 25, s. 273 (1).
At least parts of the proposed code are in my opinion illegal (as indicated above) and thus subject to quashing.
The municipal act section 14 also provides for bylaws to be declared by the court to be null and void if they conflict with a statute:
Conflict between by-law and statutes, etc.
(1) A by-law is without effect to the extent of any conflict with,
(a) a provincial or federal Act or a regulation made under such an Act; or
(b) an instrument of a legislative nature, including an order, licence or approval, made or issued under a provincial or federal Act or regulation. 2001, c. 25, s. 14.
Same
(2) Without restricting the generality of subsection (1), there is a conflict between a by-law of a municipality and an Act, regulation or instrument described in that subsection if the by-law frustrates the purpose of the Act, regulation or instrument. 2006, c. 32, Sched. A, s. 10.
At least parts of the proposed code are in my opinion in conflict (as described above) with the Municipal act and are thus subject to being declared “without effect”.
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In the September 20, 2016 council meeting, council illegally held court, accusing me and finding me guilty of: breach of the Law society act; breach of the municipal conflict of interest act; and harassment of staff (implying by innuendo breach of the Occupational Health and Safety act).
It seems to me that council with the proposed code of conduct is trying to make that very illegal process legal.
The attempt must fail.
Craig Gammie's Commentary 