Municipalities Take Note: The Expanded Role of Integrity Commissioners
Date: December 4, 2018
It is never too early to start planning for your new obligations under Bill 68, the Modernizing Ontario’s Municipal Legislation Act, 2017. Bill 68 will come into force on March 1, 2019 and will mean significant changes for Ontario’s municipal governments and local boards. Notably:
- municipalities will be required to establish Codes of Conduct for members of council and local boards
- it will now be mandatory for municipalities to appoint an Integrity Commissioner
- the current powers of the Integrity Commissioner will expand and provide Commissioners with more discretion to conduct inquiries
- the Integrity Commissioner will be able to conduct independent inquiries into allegations of conflict of interest against council or local board members under the Municipal Conflict of Interest Act (MCIA) and, where the Commissioner considers it appropriate, to bring proceedings before a court.
In this FTR Now, we outline a number of major changes to the Municipal Act, 2001 and discuss their potential impact on municipalities. As you prepare for compliance with the reforms outlined in Bill 68, your implementation plan should include consideration of traditional “human resources” issues when establishing your Codes of Conduct.
Integrity Commissioner – Background
An Integrity Commissioner is an independent and impartial position that reports directly to municipal council and whose powers and duties are set out in the Municipal Act, 2001. Currently, section 223.4 of the Municipal Act, 2001 provides that an Integrity Commissioner may conduct an inquiry into allegations about whether a member of council or local board has contravened the Code of Conduct. The Integrity Commissioner has broad powers to conduct that inquiry and to obtain access to relevant information and documents from the municipality. Following the inquiry, council may act upon the Integrity Commissioner’s findings including imposing reprimands and suspending members of council.
Incoming Changes Under Bill 68
Under Bill 68, all municipalities will now be required to appoint an Integrity Commissioner, who does not need to be an employee of the municipality. A municipality may choose to utilize the Integrity Commissioner from another municipality.
The role of the Integrity Commissioner has been expanded. In addition to responsibility for the Code of Conduct and the procedures and rules regarding ethical behaviour currently present in the Municipal Act, 2001, the Integrity Commissioner’s portfolio will now include:
- investigations concerning the compliance of members of council and of local boards with sections 5, 5.1 and 5.2 of the MCIA
- requests from members of council and of local boards for advice respecting their obligations under the Code of Conduct applicable to the member
- requests from members of council and of local boards for advice respecting their obligations under a procedure, rule or policy of the municipality or of the local board, as the case may be, governing the ethical behaviour of members
- requests from members of council and of local boards for advice respecting their obligations under the MCIA.
- the provision of educational information to members of council, members of local boards, the municipality and the public about the municipality or local board’s Codes of Conduct and the MCIA [from section 223.3(1) as amended].
Additionally, Bill 68 will introduce time restrictions on when electors can make a complaint to the Integrity Commissioner. Generally, such a complaint must be made within six weeks of the issue coming to the attention of the elector. However, in election years, no applications can proceed in the period of time from nomination day to voting day in a regular election. If an elector wishes to proceed with an application that falls within six weeks before the restricted time frame, they may apply to the Integrity Commissioner within the six-week period after voting day.
Inquiry by a Commissioner: Section 223.4.1
On March 1, 2019, section 223.4 the Municipal Act, 2001 will be amended to add section 223.4.1. This new section sets out an additional mechanism by which the public can make a complaint against a member of council or local board which relates to the prohibitions concerning pecuniary interests of members. The section reads:
An elector (as defined in the Municipal Conflict of Interest Act) or a person acting in the public interest, may make a complaint to an integrity commissioner where he/she believes there has been a contravention of sections 5, 5.1 or 5.2 of the Municipal Conflict of Interest Act by a member of council or member of a local board.
If the Integrity Commissioner decides to conduct an inquiry into an allegation of a contravention of sections 5, 5.1 or 5.2 of the MCIA they can have a public meeting to discuss the inquiry. Upon completion of the inquiry, the Integrity Commissioner can, if they consider it appropriate, apply to a judge under section 8 of the MCIA for a determination as to whether the member of council or local board has contravened the MCIA. The costs of applying to a judge are to be paid by the municipality or the local board as applicable. This change is very significant. Previously, only an elector could bring an application to a judge under the MCIA.
Codes of Conduct
We recommend that municipalities and local boards which have not yet developed a Code of Conduct for members commence their work to develop one. Beyond those that are mandated, that work should include a consideration of what will and what will not be covered by a Code of Conduct. Bill 68 contemplates that the Minister may enact regulations regarding the content of Codes of Conduct. However, it is unknown at this time whether such regulations will be enacted.
In developing a Code of Conduct, it is important to consider the broad discretion of an Integrity Commissioner, the public nature of the inquiry and the obligation of the Integrity Commissioner to report their findings to council or the local board in public.
The metoo# movement and recent focus on workplace harassment has increased the appetite for processes that hold public officials to account for inappropriate behaviour. A Code of Conduct can be used to address these behaviours which would give the Integrity Commissioner the responsibility for investigating allegations through a public process. Municipalities and local boards should consider whether an Integrity Commissioner-led inquiry will encourage complainants to come forward or if a less public process such as an investigation under the municipality or local board’s harassment and discrimination policy would be more appropriate. Alternatively, in developing the Code of Conduct, municipalities and local boards should consider whether they can include in the Code of Conduct some ability for the Integrity Commissioner to minimize what is shared publicly while at the same time ensuring a fair process for the individual accused of misconduct. In any event, consideration should be given to the interaction between the Code of Conduct and the harassment and discrimination policy, to ensure that the intake and investigation processes are clear to complainants and respondents alike.
Appointing an Integrity Commissioner
With the now mandatory and expanded role of the Integrity Commissioner and the ability for electors to bring forward complaints to the Integrity Commissioner, municipalities will want to consider the most cost effective way to engage the services of an Integrity Commissioner. A municipality’s options include, but are not limited to, direct employment, a non-employment retainer fee, per diem or hourly rates, or cost sharing with another municipality.
Hicks Morley lawyers have experience in working with Integrity Commissioners and in assisting municipalities and local boards in developing Codes of Conduct and workplace policies and procedures. If you have any questions, please contact your regular Hicks Morley lawyer.
 Sections 5, 5.1 and 5.2 of the MCIA sets out duties of a board member with respect to direct or indirect pecuniary interest in any matter.
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