Body: Committee of the Whole Type: Agenda Meeting: Committee of the Whole Date: November 1, 2018 Collection: Council Agendas Municipality: South Frontenac
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TOWNSHIP OF SOUTH FRONTENAC COMMITTEE OF THE WHOLE MEETING AGENDA
TIME: DATE: PLACE:
5:00 PM, Thursday, November 1, 2018 Verona Lions Club.
JOINT ORIENTATION SESSION: for the Five Frontenac Municipal Councils
Welcome from Mayor Ron Vandewal - 5:00 pm
(a)
A Special welcome to Council members for the 2018-2022 Council Term from North Frontenac, Central Frontenac, South Frontenac and Frontenac Islands
Allan & Partners - Auditors - 5:05 pm - 6:00 pm
(a)
Presentation to the Frontenac’s
Dinner - 6:00 pm - 6:45 pm
(a)
Buffet Style - Lasagna/Caesar Salad - Time for Meet and Greet
Tony Fleming, Cunningham Swan - 6:45 - 7:45 pm
(a)
Roles and Responsibilities and Statutes
John Mascarin, AIRD BERLIS, Integrity Commissioner - 7:45 - 8:pm
(a)
Municipal Accountability
Closing Remarks and Adjournment
(a)
Please note that this agenda and all presentations can be found on the Township of South Frontenac Civic Web portal.
2 - 41
42 - 97
98 130
Frontenac Joint Council Orientation Session November 1, 2018
Page 2 of 130
Agenda • Audit Process – Communications with Council – Audit Process
• Financial Statements
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Page 3 of 130
• Asset Management Plan and Long Range Financial Plan
Role of Governance • Transparency and Accountability – To ensure there is a focus on the financial accountability – That the financial systems can stand up to public scrutiny Page 4 of 130
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Audit Process • Audit Process has three formal communications with Council – Engagement Letter – Audit Planning Letter
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– Audit Findings
Engagement Letter • Auditor’s statutory responsibility is to express an opinion on the Municipality’s financial statements based on the results of the audit – Reasonable but not absolute assurance that financial statements are free of material misstatement (collusion) Page 6 of 130
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Engagement Letter • Sufficient understanding of internal controls to plan audit – While an audit is not for the purpose to report on the design or effectiveness of the internal controls, the management letter will often contain recommendations for improvements to the system of internal control Page 7 of 130
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Engagement Letter • Management’s Role includes: – The preparation of the financial statement – Develop and implement efficient and effective internal control processes to respond to risk – Risk includes financial and other organizational risks Page 8 of 130
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Audit Planning Letter • Materiality definition ‘misstatements that are likely to impact the economic decisions of financial statement users’ – Generally 1% to 3% of total revenues – Risk Assessment
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• Sets out significant financial areas and the audit process
Audit Planning Letter • Includes two questions for Council
– What oversight do you provide over management’s processes for identifying and responding to fraud risks? – For example:
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• Oversight over management’s processes • Organizational values and ethics • Internal control processes • Financial reporting including budget and interim reports
Audit Planning Letter • Includes two questions for Council / continued – Are you aware of any instances of actual, suspected or alleged fraud affecting the Municipality?
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Audit Process • Audit is planned using a substantive and compliance approach – Substantive approach would be to prove the balance. For instance the tax levy, grants and the majority of the asset and liability accounts
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Audit Process • Audit is planned using a substantive and compliance approach / continued – Compliance approach examines adherence to internal controls for transaction streams such that the auditor can rely on the internal control to prevent and detect errors • Examples
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– Manager’s approval on time sheets and invoices – Payroll reviewed by Treasurer – Accounts reconciliations reviewed by Treasurer
Audit Process • Internal controls are processes designed by management to provide reasonable assurance that the Organization’s objectives are accomplished
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Audit Process • Internal controls are designed to: – Safeguard assets – Ensure accuracy of financial data – Promote operational efficiency – Ensure compliance with regulatory authorities – Minimize risk to management and employees Page 15 of 130
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Audit Process • Evaluation of internal controls – Tone at the top – ethical, accountable, transparent – Development of policies and procedures for instance
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• Codes of Conduct • Processes for handling finances which include segregation of duties • Regular preparation and review of reconciliations • Spending approval limits / procurement policy • Training and awareness of policies and procedures • Whistleblower policy
Audit Findings • Provided after the completion of the audit • Includes management letter
– Report on significant internal control deficiencies – Report on other matters identified during the audit that would be of interest to Council and management
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• Statutory Audit vs Comprehensive Audit
Financial Statements • Purpose of Financial Statements
– To report on financial activities and financial position – To report to Inhabitants and Taxpayers on the municipal services provided and resources available
17
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– To report revenues and expenditures compared to budget to ensure accountability
Financial Statements • Purpose of Financial Statements /continued – To assist the Municipality in its long range financial plan – To enable the Municipality to compare its financial position to other similar sized municipalities
Page 19 of 130
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Financial Statements • Purpose of Financial Statements /continued – Three Stages of Reporting • Budget • Interim financial reporting • Annual financial reporting
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Budget • Consider if the budget addresses the Municipality’s priorities based on their strategic plan
– Does it address established budget policies and guidelines?
• Operating Budget
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– Proposed revenues and expenditures for ongoing activities for an upcoming year or a series of years (Municipal Act s 291)
Budget • Capital Budget – Proposed expenditures and revenues for capital items
• Reserves and Reserve Funds
21
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– A plan that includes funds to be set aside to support future spending and funds to be withdrawn for current capital and operating spending
Budget • PSAS or Public Sector Accounting Standards Budget – Adopt the budget in a format consistent with year end reporting
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Interim Financial Reporting • Consider establishing a reporting time line for the year • Monitoring actual expenditures to budgeted expenditures and projections
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– Variances in revenues – expected, planned changes in expenditures – Variances in expenditures – anticipated, planned changes – Projected year end position consider use of surplus or funding of a deficit
Annual Financial Statements • Prepared on PSAS basis • Statement of Operations – Operating revenues – Operating expenses – Capital revenues – Annual surplus (deficit) – Comparison to budget Page 25 of 130
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Annual Financial Statements • Comparison to Internal Reporting – Financial statement note disclosure
• Statement of Changes in Net Assets (Net Debt) – Reflects changes in financial position – Increases in net assets (net debt) should be clearly understood Page 26 of 130
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Annual Financial Statements • Statement of Financial Position – Also known as Balance Sheet – Reflects assets and liabilities at a specific point in time – Municipal equity includes tangible capital assets, inventory not for resale and prepaid expenses
• Statement of Cash Flow
26
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– Reflects changes in cash position
Annual Financial Statements • Notes to the Financial Statements – Provide additional information to support the financial statements – Notes to Consider • Long term debt • Composition of municipal equity • Contractual obligations • Segmented information Page 28 of 130
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Annual Financial Statements • Reserve and Reserve Fund Schedule – Purpose of reserves – Composition of reserves – Statutory requirements vs Council motions
• Schedule of Tangible Capital Assets
28
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– Major categories of assets – Replacement strategy
Annual Financial Statements • Other Reports – Key financial indicators – Provincial low risk indicators
Page 30 of 130
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Asset Management Plan and Long Range Financial Plan • Asset management plan will be the basis of future Provincial grant funding – Consistent with strategic planning – Integrated with long term financial plan – Part of the budget process Page 31 of 130
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Asset Management Plan and Long Range Financial Plan • Timeline – July 1, 2019 – Strategic Asset Management Policy • Requires municipalities to outline commitments to best practices and continuous improvement
Page 32 of 130
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Asset Management Plan and Long Range Financial Plan • Timeline – July 1, 2021 –Asset Management Plan: Phase 1 • Core Assets – Roads, bridges, water, wastewater and stormwater assets » Inventory of Assets • By category • Replacement cost value • Average age and condition • How condition information is gathered Page 33 of 130
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Asset Management Plan and Long Range Financial Plan • Timeline / continued – July 1, 2021 –Asset Management Plan: Phase 1 • Core Assets / continued – Roads, bridges, water, wastewater and stormwater assets » Current levels of service measured by standard metrics • Community or customer level • Technical level
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» Costs to maintain levels of service
Asset Management Plan and Long Range Financial Plan • Timeline / continued – July 1, 2023 –Asset Management Plan: Phase 2 • Builds out the Phase 1 plan to include all assets
– July 1, 2024 –Asset Management Plan: Phase 3 • Builds on Phase 1 and 2 by adding: – Proposed levels of service – Lifecycle management and financial strategy Page 35 of 130
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Asset Management Plan and Long Range Financial Plan • Timeline / continued – Five Year Update Cycle – Tools Available • MFOA – Municipal Finance Officers Association • Asset Management Ontario Website
Page 36 of 130
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Frontenac Joint Council Orientation Session • Questions and Discussion • Contact Information
– Howard Allan, FCPA, FCA (hallan@allanandpartners.com) x 23 – Carole Fuller, CPA, CGA (cfuller@allanandpartners.com) x 29
– Serena Fortin, CPA, CA
(sfortin@allanandpartners.com) x 34
36
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– Telephone Number: 613 - 267 - 6580
Page 38 of 130
County of Frontenac Consolidated Statement of Operations (Note 16) Budget
2017
2016
$
$
$
9,455,499 3,317,078 15,760,498 9,185,600 247,000 978,256 120,797 140,000 468,402
9,400,270 3,411,593 16,013,414 9,118,317 171,822 842,313 143,503 165,722 747,151
9,041,153 3,299,848 15,502,560 9,081,225 35,250 893,016 103,238 130,038 521,417
39,673,130
40,014,105
38,607,745
2,950,203 6,910 997,119 16,871,302 746,839 13,793,444 829,718 734,625 1,262,791 952,184
2,769,691 3,239 1,039,255 16,662,373 746,847 13,645,575 821,097 689,128 1,368,747 952,184
2,800,513 1,692 1,027,781 16,748,837 732,191 13,889,796 812,960 842,236 834,286 952,184
39,145,135
38,698,136
38,642,476
527,995
1,315,969
(34,731)
99,681
444,359
746,243
627,676
1,760,328
711,512
MUNICIPAL EQUITY, BEGINNING OF YEAR
28,321,344
28,321,344
27,609,832
MUNICIPAL EQUITY, END OF YEAR
28,949,020
30,081,672
28,321,344
For the year ended December 31
REVENUES Taxation ▸ from other governments User charges Government grants ▸ provincial ▸ other municipalities ▸ Federal Deferred revenues earned (note 4) Provincial offences fines penalties Investment income Other income
TOTAL REVENUES EXPENDITURES General government Protection to persons and property Transportation services Ambulance services Health services Social and family services Libraries Social housing Planning and development Other
TOTAL EXPENDITURES NET REVENUES (EXPENDITURES) FROM OPERATIONS OTHER Grants and transfers related to capital Other municipalities
ANNUAL SURPLUS
The accompanying notes are an integral part of these consolidated financial statements.
7
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County of Frontenac Consolidated Statement of Changes in Net Financial Assets (Note 16) Budget
2017
2016
$
$
$
627,676
1,760,328
711,512
1,495,810 (1,529,105)
1,576,423 (2,161,531) (26,936) 67,072 (203,559) (29,672) 225,140 95,066
1,419,521 (1,975,647) (31,499) 59,416 (225,140) (95,066) 220,314 30,387
(33,295)
(457,997)
(597,714)
594,381
1,302,331
113,798
NET FINANCIAL ASSETS, BEGINNING OF YEAR
5,019,308
5,019,308
4,905,510
NET FINANCIAL ASSETS, END OF YEAR
5,613,689
6,321,639
5,019,308
For the year ended December 31
ANNUAL SURPLUS Amortization of tangible capital assets Acquisition of tangible capital assets Loss on sale of tangible capital assets Proceeds on sale of tangible capital assets Acquisition of inventories of supplies Acquisition of prepaid expenses Consumption of inventories Use of prepaid expenses
INCREASE IN NET FINANCIAL ASSETS
The accompanying notes are an integral part of these consolidated financial statements.
8
Page 40 of 130
County of Frontenac Consolidated Statement of Financial Position December 31
2017
2016
$
$
9,258,193 4,485,972 3,015,857
5,909,357 8,177,590 3,491,442
16,760,022
17,578,389
3,510,814 311,886 136,768 213,534 6,265,381
4,323,231 299,998 91,571 476,072 7,368,209
10,438,383
12,559,081
6,321,639
5,019,308
23,526,802 203,559 29,672
22,981,830 225,140 95,066
23,760,033
23,302,036
30,081,672
28,321,344
ASSETS Financial Assets Cash Investments Accounts receivable
LIABILITIES Financial Liabilities Accounts payable and accrued liabilities Employee future benefit obligations (note 3) Deferred revenues Deferred revenues ▸ obligatory reserve fund (note 4) Long term liabilities (note 5)
NET FINANCIAL ASSETS NON-FINANCIAL ASSETS Tangible capital assets (note 14) Inventories Prepaid expenses
Commitments (note 11) Contingent Liabilities (note 9)
MUNICIPAL EQUITY (note 6)
The accompanying notes are an integral part of these consolidated financial statements.
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County of Frontenac Consolidated Statement of Cash Flows 2017
2016
$
$
1,760,328 1,576,423 (26,936)
711,512 1,419,521 (31,499)
3,309,815
2,099,534
475,585 (812,417) 11,888 45,197 (262,538) 21,581 65,394
532,948 632,008 13,601 (38,569) (81,648) (4,826) (64,679)
(455,310)
988,835
2,854,505
3,088,369
Net decrease (increase) in short term investments
3,691,618
(8,177,590)
Net decrease in investments
3,691,618
(8,177,590)
Acquisition of tangible capital assets Proceeds on sale of tangible capital assets
(2,161,531) 67,072
(1,975,647) 59,416
Net investment in tangible capital assets
(2,094,459)
(1,916,231)
Debt principal repayments
(1,102,828)
(1,037,462)
Net decrease in cash from financing activities
(1,102,828)
(1,037,462)
NET INCREASE (DECREASE) IN CASH
3,348,836
(8,042,914)
CASH, BEGINNING OF YEAR
5,909,357
13,952,271
CASH, END OF YEAR
9,258,193
5,909,357
For the year ended December 31
OPERATING ACTIVITIES Annual surplus for the year Amortization Gain on disposal of capital assets
Net Change in Non-Cash Working Capital Balances Accounts receivable Accounts payable and accrued liabilities Employee future benefit obligations Deferred revenues Deferred revenues ▸ obligatory reserve funds Inventories Prepaid expenses
Working Capital from Operations INVESTING ACTIVITIES
CAPITAL ACTIVITIES
FINANCING ACTIVITIES
The accompanying notes are an integral part of these consolidated financial statements.
9
COUNCIL ORIENTATION November, 2018
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THE PURPOSE OF MUNICIPAL GOVERNMENT (Municipal Act, 2001 Section 2) “Municipalities are created by the Province of Ontario to be responsible and accountable governments with respect to matters within their jurisdiction and each municipality is given powers and duties under this Act and many other Acts for the purpose of providing good government with respect to those matters.”
Page 43 of 130
SOME STATUTES THAT GOVERN AND EMPOWER THE MUNICIPALITY • Municipal Act, 2001
• Safe Drinking Water Act
• Planning Act
• Employment Standards Act
• Municipal Freedom of Information and Protection of Privacy Act
• Police Services Act
• Development Charges Act • Environmental Assessment Act
• Fire Protection and Prevention Act • Ontario Heritage Act • Accessibility for Ontarians with Disabilities Act
• Environmental Protection Act Page 44 of 130
• Drainage Act
• and all their regulations
• Assessment Act • Building Code Act • Expropriations Act • Occupational Health and Safety Act • Municipal Elections Act
Page 45 of 130
SOME OF THE MUNICIPALITY’S POWERS UNDER THE MUNICIPAL ACT s. 8 – the powers of the Municipality… shall be interpreted broadly so as to confer broad authority on the municipality to enable the municipality to govern its affairs as it considers appropriate and to enhance the municipality’s ability to respond to municipal issues By-laws may: • Regulate or prohibit; • Require persons to do certain things; • Provide a system of licenses; A by-law may be general or specific and differentiate in any way and on
any basis the municipality considers appropriate.
Page 46 of 130
SOME OF THE MUNICIPALITY’S POWERS UNDER THE MUNICIPAL ACT s. 9 –
municipalities have the capacity, rights, powers and privileges of a natural person
This means Municipalities can: • Enter contracts • Purchase and sell land • Hire and fire employees • Delegate administrative responsibility No longer a “list” of permitted powers Page 47 of 130
UPPER/LOWER TIER GOVERNMENTS s. 11 – upper and lower tier governments may provide any service or thing considered necessary or desirable, subject only to the spheres of powers assigned to upper and lower tier government – some are exclusive some are shared. • • • • •
Highways/transportation Waste management Public utilities Economic development/licensing Culture, parks, recreation and heritage Page 48 of 130
UPPER TIER GOVERNMENTS The division of authority between the upper and lower tier government is unique to each county. Upper tier governments may deal with any of the following (not an exclusive list): • • • • • •
Highways/transportation Waste management Public utilities Homes for the aged Social services Economic development
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LOWER TIER GOVERNMENTS Lower tier governments may deal with any of the following (not an exclusive list): • Property Tax Billing and Collection • Roads and Sidewalks • Parks and Recreational Facilities • Garbage Collection and Disposal • Parking and Animal Control • Building Inspection, Line Fences and Property Standards • Grants and Financial Assistance • Business Licensing and Regulation Page 50 of 130
HOW A MUNICIPALITY EXERCISES ITS POWERS BY BY-LAWS Section 5 of the Municipal Act “A municipal power, including a municipality’s capacity, rights, powers and privileges under section 9, shall be exercised by by-law unless the municipality is specifically authorized to do otherwise.”
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BY RESOLUTIONS May be used: • To approve administrative decisions • When specifically permitted by law
BY FOLLOWING PROCEDURES • Council’s Procedural By-law • Some decisions require notice to the public before the decision • Some decisions require notice to the public after the decision • Some decisions require public meetings before the decision
Page 52 of 130
•
By‐laws – The law of a particular district made by the inhabitants thereof, or their authorized representatives – The equivalent of “legislative action”; a regulation by a municipal council for governing its affairs – Binds all persons within the boundaries of a municipality, whether residents or not. Equally binding on the enacting municipality – FORM: Section 249 of the Municipal Act, 2001 requires: • That the By‐law be written • That the by‐law be signed by the head of council or other presiding officer and the Clerk
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•
•
Municipal Act, 2001 – COMMON LAW EXCEPTIONS: there are also a number of long‐standing common law exceptions: • By‐law not needed for “insignificant matters of every‐day occurrence or matters of convenience amounting almost to necessity” ie routine or minor matters do not require a by‐law • Some administrative decisions, such as instructing staff in the performance of their duties and receiving legal advice, do not require a by‐law – Therefore, the subject matter of the item of business transacted and whether it is being transacted under the Municipal Act, 2001 determine the need for an authorizing by‐law NOTE: Whenever there is doubt about the mode that should be adopted, it is the wiser course to proceed by by‐law
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THE PUBLIC’S RIGHT TO CHALLENGE MUNICIPAL LAWS AND DECISIONS •
Some decisions can be appealed to the courts ∙ If Council exceeds its legal authority, the decision can be quashed
•
Some decisions can be appealed to the Local Planning Appeal Tribunal (formerly OMB) or other tribunals ∙ If the statute provides a right of appeal to the LPAT etc., the decision can be changed
•
Some decisions cannot be appealed ∙ Generally, decisions involving the discretionary exercise of a policy made in good faith (Municipal Act, 2001, s 450) Page 55 of 130
SOME REMEDIES AVAILABLE TO THE MUNICIPALITY TO ENFORCE ITS LAWS (Note: Not all apply in every situation) • Orders to Comply • Work Orders • Remedial Action • Adding Costs to Property Tax Rolls • Shutting Off Utilities • Selling Property for Tax Arrears • Prosecution – Fines and Court Orders • Civil Action – Judgments and Court Orders Page 56 of 130
ROLE IN MUNICIPAL GOVERNMENT ROLE OF COUNCIL (Municipal Act, 2001 section 224)
• Represent the public; • Consider the well-being and interests of the municipality; • Develop and evaluate the municipality’s policies and programs; • Determine which services the municipality will provide; • Ensure that administrative practices and procedures are in place to implement council’s decisions; • Ensure the accountable and transparent operation of the municipality; • Maintain the financial integrity of the municipality • Carry out the duties of council under the Municipal Act or any other Act Page 57 of 130
ROLE OF THE HEAD OF COUNCIL (Municipal Act, 2001 sections 225 and 226.1)
• Act as chief executive officer of the municipality • Uphold and promote the purposes of the municipality • Preside over council meetings • Provide leadership to the council • Promote public involvement in the municipality’s activities • Foster activities that enhance economic, social and environmental well-being of the municipality and its residents • Represent the municipality at official functions • Promote and represent the municipality locally, nationally and internationally Page 58 of 130
• Carry out the duties of the head of council under the Municipal Act or any other Act
ROLE OF ADMINISTRATION (Municipal Act, 2001 section 227)
• Implement council’s decisions • Establish administrative practices and procedures to carry out council’s decisions • Undertake research and provide advice to council on the municipality’s policies and programs • Carry out other duties required under the Municipal Act or any Act • Carry out other duties assigned by the municipality
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ROLE OF THE CHIEF ADMINISTRATIVE OFFICER (Municipal Act, 2001 section 229)
• Exercise general control and management of the affairs of the municipality • Ensure the efficient and effective operation of the municipality • Performing such other duties as are assigned by Council
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ROLE OF THE CLERK (Municipal Act, section 228)
• Record, without note or comment, all resolutions, decisions and other proceedings of council • If required by any member present at a vote, record the name and vote of every member voting on any matter or question • Keep the originals or copies of all by-laws and minutes of the Council proceedings • Perform the other duties required under the Municipal Act or under any other Act • Perform such other duties as are assigned by the municipality
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ROLE OF CHIEF BUILDING OFFICIAL (Building Code Act, section 1.1(6))
• Establish operational policies for the enforcement of the Building Code Act and the building code • Co-ordinate and oversee the enforcement of the Building Code Act and the building code • Exercise powers and perform the other duties assigned under the Building Code Act and the building code • Exercise powers and perform duties independently and in accordance with the standards established by the applicable code of conduct
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COUNCIL/STAFF RELATIONS (a required policy as of March 19, 2019)
• Council sets policy direction and strategic direction • The CAO directs senior staff to ensure that the direction of Council is followed and goals are met • Managers and Supervisors direct staff • Council must respect his hierarchy • Competing priorities and direction is counterproductive • Attempting to direct staff may have liability implications (ex. Snowplowing)
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LIABILITY FOR COUNCIL ACTION • •
•
The municipality can be sued like any person s. 450 creates a defence where the act complained of is a result of a policy decision – Policy is developed to reflect budget, resource, and governance restraints – Operational decisions implement policy – no immunity The municipality has obligations under many statutes that are not subject to discretion – Example – Building Code enforcement • Failure to enforce exposes the municipality to liability • It is outside Council’s role to make decisions under the Building Code Act Page 64 of 130
LIABILITY FOR COUNCIL ACTION Safe Drinking Water Act 19. (1) Each of the persons listed in subsection (2) shall, (a) exercise the level of care, diligence and skill in respect of a municipal drinking water system that a reasonably prudent person would be expected to exercise in a similar situation; and (b) act honestly, competently and with integrity, with a view to ensuring the protection and safety of the users of the municipal drinking water system. (2) The following are the persons listed for the purposes of subsection (1): … 3. If the system is owned by a municipality, every person who, on behalf of the municipality, oversees the accredited operating authority of the system or exercises decision-making authority over the system. Max fines for corporations $100,000. Max of $6,000,000 if the offence results in a health risk
- for a first offence and $200,000 and $10,000,000 for a subsequent offence
•
Max fines for individuals $20,000. Max of $4,000,000 if the offence results in a health risk for a first offence and $50,000 and $7,000,000 for a subsequent offence
•
Max prison sentence for individuals is 1 year – up to 5 years if the offence results in a health risk
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•
LIABILITY FOR COUNCIL ACTION Municipal Act, 2001: •
- (1) - No proceedings against a member of council for damages based on the default of the municipality in keeping a highway or bridge in a reasonable state of repair
•
S. 448. (1) - No personal liability for members of Council for any act done in good faith in the performance of a duty or authority under the Municipal Act or a by-law
•
S. 448(2) - Municipality can be liable for negligence of member of council in performance of council duty.
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COUNCIL MEETINGS •
Every Council must have a Procedural by-law governing its meetings (Municipal Act, 2001 s. 238)
•
Meetings are to be conducted in accordance with the Procedural Bylaw
•
No secret ballots (except to elect Warden or appoint meeting chair)
•
May have recorded votes
•
What constitutes a meeting – Quorum – Discussion that materially advances the business of Council
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COUNCIL MEETINGS 238(3.1) The applicable procedure by-law may provide that a member of council, of a local board or of a committee of either of them, can participate electronically in a meeting which is open to the public to the extent and in the manner set out in the by-law provided that any such member shall not be counted in determining whether or not a quorum of members is present at any point in time.
Not during closed session May impose restrictions in the by-law
Advance permission of Council Limit number of times per term Restriction on voting – be aware that any member who does not vote during a recorded vote counts as a negative vote
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CLOSED (IN CAMERA) MEETINGS •
All meetings must be open to the public, unless otherwise permitted by law
•
Proper resolution needed for closed meeting • Matters related to the security of the municipality’s property • Personal matters about an identifiable individual, including municipal employees • A proposed or pending acquisition/disposition of land • Labour relations or employee negotiations • Litigation or potential litigation, including matters before the LPAT and other administrative tribunals Page 69 of 130
• Receiving advice or solicitor/client privileged
reviewing
communication
that
is
• To consider a request under the Municipal Freedom of Information and Protection of Privacy Act when Council is designated as head of the institution for purposes of that Act • To educate or train Council as long as there is no discussion about or dealing with matters that materially advance the business or decision-making of the council • Any matter in respect of which the Council or Committee is authorized by another statute to meet in-camera Page 70 of 130
• •
•
•
information explicitly supplied in confidence to the municipality or local board by Canada, a province or territory or a Crown agency of any of them; a trade secret or scientific, technical, commercial, financial or labour relations information, supplied in confidence to the municipality or local board, which, if disclosed, could reasonably be expected to prejudice significantly the competitive position or interfere significantly with the contractual or other negotiations of a person, group of persons, or organization; a trade secret or scientific, technical, commercial or financial information that belongs to the municipality or local board and has monetary value or potential monetary value; or a position, plan, procedure, criteria or instruction to be applied to any negotiations carried on or to be carried on by or on behalf of the municipality or local board. Page 71 of 130
MAKING DECISIONS IN CLOSED MEETINGS Must relate only to matters that can be discussed in closed meeting AND Must be procedural only or to give directions or instructions to officers, employees or agents of the municipality •
Examples: – Vote whether to report a matter out in public session and vote on it – Vote to amend resolution to be debated and voted on in public session – Vote to instruct staff to make inquiries and report back – Open session vote cannot be “rubber stamp” of decision made in-camera Page 72 of 130
POTENTIAL CONSEQUENCES OF HOLDING AN IMPROPER CLOSED MEETING
Any person may request an investigation •
Investigation conducted by investigator appointed by municipality
•
If no investigator appointed, by Ontario Ombudsman
•
Report published
•
Court declare decision invalid – Decision is of no force or effect – Can invalidate a by-law passed in open session – Can lead to court challenges Page 73 of 130
ACCOUNTABILITY AND TRANSPARENCY POLICIES AND PROCEDURES (s. 270) A municipality shall adopt and maintain policies for:
- Its sale and other disposition of land.
- Its hiring of employees.
- The relationship between members of council and the officers and employees of the municipality (Comes into force on March 1, 2019).
- Its procurement of goods and services.
- The circumstances, form, manner and time of giving notice to the public.
- The manner in which the municipality will try to ensure that it is accountable to the public for its actions
- The manner in which the municipality will try to ensure that its actions are transparent to the public.
- The delegation of its powers and duties.
- How the municipality will protect and enhance the tree canopy and natural vegetation in the municipality (Comes into force March 1, 2019)
- Pregnancy leaves and parental leaves of members of council (Comes into force March 1, 2019) Page 74 of 130
DECORUM AND CONDUCT Council Meetings:
Procedural Bylaw (s. 238)
Councillor Conduct:
Code of Conduct (s. 223.2)
Workplace Violence and Harassment:
OH&S Act (Bill 168)
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CODE OF CONDUCT •
Integrity Commissioners – All municipalities will need to provide access to an integrity commissioner by appointing their own, keeping one on retainer, or working with another municipality through a shared services agreement – in force March 1, 2019 – Role will be changed and expanded in a number of ways • Power to provide advice to councils about their codes of conduct and Municipal Conflict of Interest Act obligations • Explicit power to refer investigations to the courts • Explicit power to initiate investigations into Municipal Conflict of Interest Act or code of conduct violations • Broader responsibility for public education – Municipalities required to indemnify integrity commissioner
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CODE OF CONDUCT •
Mandatory elements of the Code (prescribed by Regulation – as of March 19, 2019)
- Gifts, benefits and hospitality.
- Respectful conduct, including conduct toward officers and employees of the municipality or the local board, as the case may be.
- Confidential information.
- Use of property of the municipality or of the local board, as the case may be.
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CODE OF CONDUCT •
Advice and Opinions – any Member may seek an opinion or advice from the Integrity Commissioner. • In advance of declaring a conflict of interest • About how to comply with the Code of Conduct • About ethical obligations of the Member • Concerning how to deal with Council/staff relations – Advice and opinions are confidential – The Integrity Commissioner may deliver training on the Code and ethical obligations – The Integrity Commissioner may deliver education for the public – An annual report is required • Not a disclosure of confidential information, but a high‐level summary of the types of advice given and the general nature of investigations
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MUNICIPAL CONFLICT OF INTEREST ACT •
Governs individual councillors, not the municipality
•
Duty of each councillor to comply with the Act
•
Applies when acting as councillor or member of committee or local board
•
Failure to comply can result in the following: – Council seat declared vacant – Councillor disqualified from holding office for up to 7 years – Councillor required to make restitution to any person suffering loss or the municipality
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WHAT IS A CONFLICT OF INTEREST? Any pecuniary interest, direct or indirect, in any matter under consideration by council, committee or local board – Any financial or monetary interest – The pecuniary interest can be positive or negative
•
A pecuniary interest of the following persons is an indirect interest: – Councillor’s parent, spouse, same sex partner or natural, adopted or step-child – Councillor’s employer or business partner – A private corporation in which the councillor is a shareholder, director or senior officer – A public corporation in which the councillor has a controlling interest
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•
A COUNCILLOR’S OBLIGATIONS •
Disclose the nature of your interest prior to any consideration of the matter at the meeting
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Not take part in the discussion or vote on the matter
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Do not attempt in any way before, during, or after the meeting to influence the vote
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If in closed meeting, immediately leave the room during the discussion
•
If absent from the meeting, declare the conflict at the next meeting
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EXCEPTIONS TO CONFLICT OF INTEREST • Having a pecuniary interest in common with electors generally (e.g; property owner, utility customer) • Receiving an allowance, honorarium, remuneration, salary or benefit as a member of council or as a member of the volunteer fire department • Having a pecuniary interest that is so remote or insignificant that it cannot reasonably be regarded as likely to influence the councillor
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PENALTY (after March 19, 2019) • • • • • •
• • • •
9 (1) If the judge determines that the member or former member contravened section 5, 5.1 or 5.2, the judge may do any or all of the following:
- Reprimand the member or former member.
- Suspend the remuneration paid to the member for a period of up to 90 days.
- Declare the member’s seat vacant.
- Disqualify the member or former member from being a member during a period of not more than seven years after the date of the order.
- If the contravention has resulted in personal financial gain, require the member or former member to make restitution to the party suffering the loss, or, if the party’s identity is not readily ascertainable, to the municipality or local board, as the case may be. (2) In exercising his or her discretion under subsection (1) the judge may consider, among other matters, whether the member or former member, (a) took reasonable measures to prevent the contravention; (b) disclosed the pecuniary interest and all relevant facts known to him or her to an Integrity Commissioner in a request for advice and acted in accordance with the advice (c) committed the contravention through inadvertence or by reason of an error in judgment made in good faith. Page 83 of 130
MUNICIPAL FREEDOM OF INFORMATION AND PROTECTION OF PRIVACY ACT GENERAL RULE (Section 4) “Every person has a right of access to a record or a part of a record in the custody or under the control of [the municipality] unless, (a) the record or the part of the record falls within one of the exemptions under sections 6 to 15; or (b) the head is of the opinion on reasonable grounds that the request for access is frivolous or vexatious.”
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EXCEPTIONS UNDER THE MFIPPA (Note: There are many exceptions to the exceptions)
•
Draft by-laws and other matters that may be considered in-camera
•
Advice or recommendations of an officer or employee or consultant retained by the municipality
•
Records related to law enforcement or other matters under investigation
•
Information received in confidence from the Government of Canada, the Government of Ontario and other similar public entities and organizations Page 85 of 130
MORE EXCEPTIONS UNDER THE MFIPPA A record that reveals a trade secret or scientific, technical, commercial, financial or labour relations information supplied in confidence by a third party if the release of such information could significantly prejudice that person’s competitive position or interfere with their contractual rights or result in similar information not being provided to the municipality in future
•
Records that contain economic and other information affecting the municipality if to release such information could be injurious to the municipality’s position
•
Records that are subject to solicitor/client privilege
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Records that could reasonably be expected to seriously threaten the safety or health of an individual
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Records that disclose personal information
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•
DEALING WITH REQUESTS UNDER MFIPPA
• Assess whether the requested record must be disclosed • Assess whether request is frivolous or vexatious • Assess potential cost and obtain deposit • Make decision • Decision can be appealed to the Privacy Commissioner
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ROLE OF INDIVIDUAL COUNCILLORS UNDER MFIPPA •
Individual councillors have no greater right of access than the public
•
Councillors may have access to information that is a municipal record that must be protected
•
Act permits disclosure to municipal officers or employees if: • information is needed to perform their duties and • the disclosure is necessary and proper for the functioning of the municipality
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THE LAND USE PLANNING PROCESS •
Planning Act – establishes the procedures for managing and approving land use
•
Provincial Policy Statement – establishes province wide policies that govern all development in the municipality
•
Official Plan – sets policies that guide long term development in the municipality
•
Zoning By-law – establishes regulatory controls on the development of land
•
Site Plan Control – specified developments require site-specific plans to control how development proceeds
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COUNCIL’S ROLE IN THE PLANNING PROCESS Council’s decisions must: – Be made in accordance with the requirements of the Planning Act – Be consistent with the Provincial Policy Statement – Conform to the policies of the Official Plan – Comply with the applicable criteria set out in the Planning Act – Be based on principles of good land use planning – Be based on a procedure that is fair, open, accessible, timely and efficient
•
Council has the authority to: – Amend its Official Plan/ subject to MMAH approval (County approval) – Approve subdivisions (County) – Amend zoning (Township) – Approve severances (Township)
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•
THE ROLE OF THE LPAT •
To hear appeals from land use planning decisions of Council or its Committee of Adjustments
•
To approve, modify or over-rule council’s decision
•
To make determinations under the Expropriations Act
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HOW TO AVOID UNNECESSARY LPAT HEARINGS •
• •
• •
Understand Council’s role in the planning process – Make decisions consistent with the Provincial Policy Statement – Make decisions that conform with the Official Plan Understand and apply the requirements of the Planning Act Understand the difference between planning decisions and policy decisions – Policy guides planning, planning does not make policy Heed the advice or comments of the municipal planner and those external agencies that provide comments Get a second opinion if Council has concerns about the advice it is receiving Page 92 of 130
What can be Appealed? • First instance appeals – Does the decision conform with the OP and is it consistent with PPS/Provincial Plans – If not, the decision goes back to the Approval Authority
• After the Approval Authority decides (again) that decision can be appealed – Grounds of appeal are the same – No open house/shortened time periods Page 93 of 130
What can be Appealed • OPA/ZBA – appeals with a twist: – the part(s) of the OP/ZBL being amended is inconsistent with PPS/conflicts with Provincial Plan/fails to conform with upper tier OP; AND – the amendment is consistent with PPS/does not conflict with Provincial Plan/conforms with upper tier OP •
When the municipality has received notice that a new decision is required: – – –
No open house Shortened time periods and no extension of time The basis for the decision is the same grounds as in the initial appeal Page 94 of 130
Appeals • Where an oral hearing is held for OP/ZBL/OPA/ZBA (at first instance) or for OPA/SD (failure to make a decision) – Parties may make oral submissions – time limits to be provided in the regulations – No party can adduce evidence – No party can call or examine witnesses
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Appeals • Where the appeal is of a decision made by the municipality after the Tribunal referred it back (second tier appeal) – No limits on evidence – No limits on examining witnesses – No mandatory case conference – Grounds of appeal will be the same as the basis for decision in the first appeal Page 96 of 130
PROFILE Tony Fleming is a Partner in the Land Use Planning, Development and Environmental Group and the Municipal Group at Cunningham Swan. Tony is recognized by the Law Society of Upper Canada as a Certified Specialist in Municipal Law (Local Government/ Land Use Planning and Development). As a Certified Specialist, Tony has demonstrated expertise in the fields of municipal law and land use planning and development law. Tony provides advice to municipalities and private sector companies on all aspects of land use planning and development as well as environmental law. Our municipal clients consult Tony on all aspects of municipal governance and complex land use planning matters. Tony appears frequently before the Ontario Municipal Board to defend decisions of municipal Councils and Committees of Adjustment. Tony also appears regularly before the Assessment Review Board and the Environmental Review Tribunal. In addition, Tony appears in all levels of Ontario Courts on administrative law matters, including defending challenges to municipal by-laws. Prior to joining Cunningham Swan, Tony was Senior Legal Counsel with the City of Kingston. Tony focused on providing advice on land use planning and development and environmental law with the City of Kingston, building on his experience in private law firms in Toronto where Tony practised as a land use planning and environmental lawyer. To contact Tony, please email tfleming@cswan.com, or call 613.546.8096
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Ontario’s Municipal Accountability Framework John Mascarin November 1, 2018 Joint Orientation Session for the Frontenac Municipalities
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Introduction
Integrity Commissioner •
also commonly referred to as an “ethics commissioner”
•
a neutral, independent officer who oversees the conduct of elected and appointed municipal officials and who reports directly to the council of the municipality that appointed or engaged him or her
•
as of March 1, 2019, an integrity commissioner is a mandatory officer or a mandatory service provider with specific statutory functions as assigned by the council under the Municipal Act, 2001 Page 99 of 130
1
Introduction
Integrity Commissioner • Toronto Computer Leasing Inquiry Commission Report, (Toronto: City of Toronto, 2005), Vol. 2 [page. 46]: An effective Integrity Commissioner system provides two basic services: • An advisory service, to help councillors and staff who seek advice before they act. • An investigative or enforcement service, to examine conduct alleged to be an ethical breach.
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2
Outline
• Historical Context • Municipal Conflict of Interest Act, Codes of Conduct, Accountability Officers, Judicial Inquiry, Jurisprudence and Judicial Review • Municipal Accountability Changes • recent changes to Ontario’s municipal accountability framework and the powers of Integrity Commissioners with respect to codes of conduct and the Municipal Conflict of Interest Act Page 101 of 130
3
HISTORICAL CONTEXT
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4
Municipal Conflict of Interest Act
• 1972: Municipal Conflict of Interest Act (“MCIA”) enacted • introduction of First Reading version of Municipal Conflict of Interest Act, 1972: “This is an important piece of legislation which embodies a new code to govern the entire field relating to conflicts of interest as they may arise in relation to members of municipal council and local boards.” • Harding v. Fraser (2006), 23 M.P.L.R. (4th) 288 (Ont. S.C.J.): “The Municipal Conflict of Interest Act is a specialized statute and comprises a complete code dealing with conflicts of interest.” Page 103 of 130
5
Accountability & Transparency – Closed Meetings
• 2006: new Part V.1 – Accountability and Transparency was added to the Municipal Act, 2001 • modelled after Part V of the City of Toronto Act, 2006 which was included as a direct consequence of Justice Bellamy’s recommendations in the Toronto Computer Leasing Inquiry • codes of conduct and accountability officers introduced:
•
•
Integrity Commissioner
•
Ombudsman
•
Auditor General
lobbyist registry
• mandatory in Toronto; permissive for all other municipalities Page 104 of 130
6
Accountability & Transparency – Closed Meetings
• 2008: closed meeting investigations implemented •
ss. 239.1 and 239.2 of the Municipal Act, 2001
•
persons could file requests to determine whether a municipality held an illegal meeting or breached its procedural by-law
•
municipalities can appoint their own investigator, failing which the Ontario Ombudsman is the investigator
•
Ontario Ombudsman (the default investigator) developed his own “working definition” of what constituted a meeting: • anything that “lays the groundwork” for council’s
business, even without a quorum, might constitute a meeting Page 105 of 130
7
Mississauga Judicial Inquiry
• October, 2011: Report of the Mississauga Judicial Inquiry: Updating the Ethical Infrastructure •
…the Municipal Conflict of Interest Act (MCIA) does not constitute a complete codification of the law governing conflicts of interest for members of municipal council. The common law also applies. The MCIA is restricted to pecuniary interests of members of council in the deliberative and legislative contexts but the common law is much broader and recognizes conflicts of interest involving non-pecuniary interests. •
Justice Douglas J. Cunningham recommended significant amendments to the Municipal Act, 2001 and the Municipal Conflict of Interest Act Page 106 of 130
8
Magder v. Ford
• 2012-2013: Magder v. Ford (2012), 5 M.P.L.R. (5th) 1 (Ont. S.C.J.) and (2013), 7 M.P.L.R. (5th) 1 (Ont. Div. Ct.) •
Mayor Rob Ford loses and then regains his seat under Municipal Conflict of Interest Act
•
there are only two penalties set out in the Municipal Act, 2001 and the City of Toronto Act, 2006 for a contravention of a code of conduct:
- A reprimand.
- A suspension of pay for up to 90 days.
•
remedial or corrective measures are, however, permissible to include in a code of conduct Page 107 of 130
9
Judicial Review, Bill 68 and Mandatory Code Matters
• September, 2016: Di Biase v. Vaughan (City) Integrity Commissioner (2016), 55 M.P.L.R. (5th) 173 (Ont. Div. Ct.) • first judicial review decision to consider the scope of an integrity commissioner’s investigative authority, discretion and powers • 2016-2017: Bill 68 and Modernizing Ontario’s Municipal Legislation Act, 2017 • introduced on November 16, 2016 – Third Reading & Royal Assent on May 30, 2017 • Part V.1 accountability provisions in force on March 1, 2019 • 2018: O. Reg. 55/18 – four prescribed subject matters to be included in all codes of conduct Page 108 of 130
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ACCOUNTABILITY CHANGES
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11
Statutory Changes
• Modernizing Ontario’s Municipal Legislation Act, 2017 (Bill 68) makes fundamental changes to Ontario’s municipal accountability framework, including significant amendments to: • Part V.1 of Municipal Act, 2001 (and City of Toronto Act, 2006) • Municipal Conflict of Interest Act • in-force date of accountability amendments – March 1, 2019 • all municipalities required to establish codes of conduct for members of council and local boards • integrity commissioners are mandatory accountability officers • expanded powers and authorities for integrity commissioners Page 110 of 130
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Code of Conduct
Codes of Conduct - s. 223.2(1) • codes of conduct are now mandatory: Code of conduct 223.2 (1) A municipality shall establish codes of conduct for members of the council of the municipality and of its local boards • all municipalities are required to establish codes of conduct for members of council and local boards • municipal council has the responsibility to establish a code for both council and its local boards • can be a single code or separate codes Page 111 of 130
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What is a Code of Conduct?
Gregory Levine, Municipal Ethics Regimes, at 7: Codes of ethics in the public sector are intended to promote integrity in public affairs and to provide guides to acceptable behavior. Codes are reference points for public servants, as well, they are tools for the public to view government actions. They provide a set of standards by which the public may judge government action or evaluate the action of officials they have encountered. •
a code of conduct is not an encyclopedia
•
a code of conduct should be credible, useful & functional Page 112 of 130
14
What is in a Code of Conduct?
• a code of conduct should include, at a minimum, the following: • application clause • key principles • interpretation clause - definitions • regulated or prohibited activities by subject matter • prescribed subject matters set out in O. Reg. 55/18 • exemptions
• penalties • saving provisions: error in judgment; inadvertence;
following written advice of integrity commissioner
15
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• remedial / corrective actions or measures
Mandatory Subject Matters
• O. Reg. 55/18 – Prescribed Subject Matters:
- Gifts, benefits and hospitality.
- Respectful conduct, including conduct toward officers and employees of the municipality or the local board, as the case may be.
- Confidential information.
- Use of property of the municipality or of the local board, as the case may be.
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16
Complaint Protocol
• complaint protocol sets out the detailed procedures and rules for: •
filing complaints and associated timelines and notices
•
complaint form (i.e. sworn affidavit of complainant)
•
disclosure / non-disclosure of complainant’s identity
•
summary dismissal provisions
•
investigation, including opportunities for early resolution
•
investigative reports – preliminary, periodic and final
•
penalties / corrective & remedial measures
• complaint protocol - part of the “statutory scheme” Page 115 of 130
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Integrity Commissioner
•
statutory officer who reports directly to council – s. 223.3
•
exercises his or her functions independently
•
functions are assigned by the municipality with respect to the code of conduct and Municipal Conflict of Interest Act: •
advising council or members to prevent violations
•
educating members re responsibilities and obligations
•
investigating complaints and conducting inquiries
•
adjudicating complaints
•
recommending penalties and corrective or remedial measures to be imposed for contraventions Page 116 of 130
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Integrity Commissioners – Mandatory
Integrity Commissioners are Mandatory - s. 223.3(1.1) • municipalities that have not appointed an integrity commissioner are required to make arrangements for all of the responsibilities of an integrity commissioner to be provided by an integrity commissioner of another municipality Integrity Commissioner Services must be Available - s. 223.3(1.2) • municipalities that have appointed an integrity commissioner but have not assigned them all of the functions and responsibilities set out in subsection 223.3(1), must make arrangements for those services to be provided by an integrity commissioner of another municipality Page 117 of 130
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Integrity Commissioner – Functions
Functions of Integrity Commissioner - s. 223.3(1) • expanded functions of an integrity commissioner: •
application and enforcement of codes of conduct and other ethical policies or guidelines
•
application and enforcement of sections 5, 5.1 and 5.2 of the Municipal Conflict of Interest Act
•
written advice to members re: their obligations under the code of conduct and the Municipal Conflict of Interest Act
•
provision of educational information to members of council and local boards, the municipality and the public re: codes of conduct and the Municipal Conflict of Interest Act Page 118 of 130
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Investigative Powers
Inquiry by Commissioner 223.4 (2) The Commissioner may elect to exercise the powers under sections 33 and 34 of the Public Inquiries Act, 2009, in which case those sections apply to the inquiry. Information (3) The municipality … shall give the Commissioner such information as the Commissioner believes to be necessary for an inquiry. Same (4) The Commissioner is entitled to have free access to all books, accounts, financial records, electronic data processing records, reports, files and all other papers, things or property belonging to or used by the municipality… that the Commissioner believes to be necessary for an inquiry. Page 119 of 130
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Investigative Obligations
Duty of confidentiality 223.5 (1) The Commissioner may and every person acting under the instructions of the Commissioner shall preserve secrecy with respect to all matters that come to his or her knowledge in the course of his or her duties under this Part. Exception (2) Despite subsection (1), information may be disclosed in a criminal proceeding as required by law or otherwise in accordance with this Part. Section prevails (3) This section prevails over the Municipal Freedom of Information and Protection of Privacy Act. Page 120 of 130
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Investigative Obligations
Reference to appropriate authorities 223.8 If the Commissioner, when conducting an inquiry, determines that there are reasonable grounds to believe that there has been a contravention of any other Act or of the Criminal Code (Canada), the Commissioner shall immediately refer the matter to the appropriate authorities and suspend the inquiry until any resulting police investigation and charge have been finally disposed of, and shall report the suspension to council.
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Investigative Authority
Di Biase v. Vaughan (City) Integrity Commissioner (2016), 55 M.P.L.R. (5th) 173 (Ont. Div. Ct.) • first judicial review of an Integrity Commissioner’s investigation and report under a code of conduct in Ontario • Divisional Court clarifies the broad discretion given to an Integrity Commissioner with respect to its investigation and process • the decision highlights the weight of municipal codes of conduct and complaint protocols in reviewing the actions undertaken with respect to an investigation • Integrity Commissioner received a detailed complaint against the deputy mayor alleging that he had improperly used his influence to assist a contractor in seeking to secure city business Page 122 of 130
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Investigative Authority
Di Biase v. Vaughan (City) Integrity Commissioner • Integrity Commissioner’s report found that the deputy mayor had: • violated the city’s code of conduct by swearing at and bullying city staff who would not hand over confidential details about city bids to him • emailed confidential city information to an outside source, whose reply was partially copied and pasted into emails to his fellow councillors and municipal staff • undertaken acts “with a view to exercising influence or assisting” the constructor to secure city business
25
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• city council accepted the Integrity Commissioner’s final report and recommendation and voted to suspend the deputy mayor’s pay for the maximum of 90 days
Investigative Authority
Di Biase v. Vaughan (City) Integrity Commissioner • Divisional Court determined that the Integrity Commissioner: • could decide when to investigate or not investigate a complaint • was entitled to re-formulate a complaint • had provided sufficient procedural fairness to the deputy mayor • correctly did not suspend investigation re: one criminal aspect • undertook a proper targeted search of emails on the city system • properly did not disclose the names of 32 city witnesses • City did not err in accepting the Integrity Commissioner’s report Page 124 of 130
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Reporting – IC Duties
Report to council 223.6 (1) If the Commissioner provides a periodic report to the municipality on his or her activities, the Commissioner may summarize advice he or she has given but shall not disclose confidential information that could identify a person concerned. Report about conduct (2) If the Commissioner reports to the municipality or to a local board his or her opinion about whether a member of council or of the local board has contravened the applicable code of conduct, the Commissioner may disclose in the report such matters as in the Commissioner’s opinion are necessary for the purposes of the report. Page 125 of 130
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Reporting – Municipal Duty
Publication of reports 223.6 (3) The municipality and each local board shall ensure that reports received from the Commissioner by the municipality or by the board, as the case may be, are made available to the public. • contrast this duty to publicly disclose with the general position under MFIPPA where a report alleging any wrongdoing is typically held to be personal information which is not subject to disclosure •
although s. 16 of MFIPPA contains a compelling public interest exception Page 126 of 130
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Enforcement
Penalties 223.4 (1) 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. •
integrity commissioner prepares the report and makes recommendations – council imposes penalties Page 127 of 130
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Enforcement
Remedial or Corrective Measures • sanctioned by the Ontario Divisional Court in Magder v. Ford: We agree with the application judge that a generous reading of the City’s power to pass a code of conduct, in accordance with s. 6(1) of the [City of Toronto Act, 2006], would support the validity of including remedial measures in such a code. We need not determine the precise ambit of permissible remedial measures in this appeal. • Altmann v. Whitchurch-Stouffville (Town): • “other actions” imposed by a council for contravention of a code of conduct must actually be corrective or remedial – they cannot be punitive sanctions or penalties Page 128 of 130
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Conclusions
• new era of municipal accountability and transparency • all municipalities will need to adopt credible codes of conduct with mandatory subject matters for members of council and local boards • all municipalities must appoint an integrity commissioner (or make such services available) • integrity commissioners have broad new authorities, including providing individual MCIA advice to members and investigating alleged MCIA contraventions • the new accountability regime will be a significant cost for municipalities Page 129 of 130
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~ fin ~
John Mascarin Partner Email: jmascarin@airdberlis.com Direct Line: 416.865.7721 Page 130 of 130
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