Public Sector Accountability and the Role of an Integrity Commissioner

PRESENTED BY ERIN CROSLEY AND KRISTEN HAMILTON

October 2024

Introduction

Municipal Codes of Conduct, Complaint Processes, and Best Practices

Municipal Government Act – Bill 20

• Bill 20 came into force in 2017
• This amended the MGA to provide that municipal councils must establish a code to govern councillors by June 13, 2018
• The Codes of Conduct were to be enacted through municipal bylaws
• This amended the duties of councillors (s. 153) to include adherence to the Code of Conduct
• The Code of Conduct for Elected Officials Regulation, AR 200/2017 (Regulation) also came into force at the same time as the amendments

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Requirements of a Code of Conduct

• A Code of Conduct must address the following topics:
• Representing and communicating on behalf of the municipality
• Respecting the decision-making process
• Adherence to policies, procedures, and by-laws
• Respectful interactions with councillors, staff, the public and others
• Confidential information
• Conflicts of interest
• Improper use of influence
• Use of municipal assets and services
• Orientation and training attendance

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Code of Conduct: Enforcement

• MGA respects the autonomy of Councils to govern themselves
• Council may choose to create an office of the integrity commissioner to receive complaints, investigate, and recommend sanctions
• Council has final decision making about enforcement of its code and imposing sanctions
• Mandate of Integrity commissioners should only allow recommending sanctions, not imposing them

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Role of an Integrity Commissioner

• Generally, an integrity commissioner is responsible for applying the rules governing the ethical conduct of members of municipal councils
• Integrity commissioners can review complaints to determine if they require an investigation and conduct formal investigations where necessary
• If a council chooses to appoint an integrity commissioner, their role and authority should be clearly laid out in the Code of Conduct

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Benefits of Integrity Commissioner

• Can appoint the same integrity commissioner for a set term
• Familiarity with your municipality’s Code of Conduct
• An avenue for more proactive advice on revising the Code of Conduct or navigating ethical concerns
• Parts (or all) of an investigation report may later be subject to a Freedom of Information and Protection of Privacy request

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Code of Conduct: Receiving and Accepting Complaints

• The Code of Conduct needs to outline the process for making a complaint for an alleged violation of the Code
• Consider:
• Who can make Complaints?
• How can Complaints be submitted?
• Who should they be submitted to?
• What must a Complaint include?
• What are the time limits on filing a complaint?
• What will happen if an anonymous complaint is received?

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Code of Conduct: Receiving and Accepting Complaints (cont’d)

• Remove barriers to making a complaint
• There should be no barriers to making a complaint to the integrity commissioner, such as fees or onerous administrative requirements
• Outline in the Code of Conduct when Complaints can be dismissed
• Frivolous or vexatious
• Even if allegations proven, no breach of the Code

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Code of Conduct: Complaint Investigation Processes

• Timelines for investigations
• How long does an investigator have to complete an investigation into a complaint?
• What is the procedure for if a time limit cannot be adhered to?
• How will the Councillor(s) under investigation be advised of a complaint?
• Will they/Council receive a copy of the Complaint and/or a summary of allegations?

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Code of Conduct: Complaint Investigation Processes (cont’d)

• How will confidentiality be protected throughout the investigation?
• Do integrity commissioners have discretion with respect to some investigation processes?
• If so, specify this wherever possible in the Complaint protocol.

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Code of Conduct: After the Investigation

• How will the Investigation findings be reported to council?
• Who will have access to the written report?
• Who will be present for an oral presentation of the report?
• Will the investigator recommend sanctions?
• Will the Complainant be advised of the outcome of the Investigation? In what format?

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Code of Conduct: Written Reports

• Written reports should include:
• Summaries of the complaint, the investigative process and the evidence obtained during the investigation;
• The relevant conduct standard or other applicable rules;
• An explanation that clearly explains how the commissioner weighed the evidence against that standard; and
• A clear conclusion based on the evidence

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Procedural Fairness and Natural Justice Considerations

• Natural Justice and Procedural Fairness apply to Council sanctions:
• Duty to provide notice as to the nature of the alleged contravention
• Duty to inform of the potential sanction(s)
• Accused Councillor has the right to respond to investigation

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Integrity Commissioner Findings – Can they be appealed?

• The findings and decisions of an integrity commissioner are final decisions and cannot be appealed
• Rule of Law requires if allegations of breach of procedural fairness or bias, these can be reviewed by the courts
• Where a council has acted on the findings of an investigation, the Court has the jurisdiction to review the council decision through applying for judicial review

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Clark v Medicine Hat, 2024 ABKB 513

• Judicial Review of decision made by Council for the City of Medicine Hat after an investigation under Code of Conduct
• Councillor appealed the decision, in part, because the sanctions were severe and disproportionate with the conduct
• The Record did not indicate why a severe remedy was decided upon by Council
• As part of the sanctions, the councilor’s official spokesperson status was revoked and she was no longer able to attend meetings of the administration, and her salary was reduced by 50%

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Clark v Medicine Hat, 2024 ABKB 513

• Court held that regulatory sanctions are not intended to be punitive and there must be proportionality between the wrongdoing and the penalty
• In this case, the sanctions were too severe
• Judicial review was granted and the matter was sent back to Council

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Code of Conduct Training for Councillors

• Training should occur when new Councillor(s) take office
• Refresher courses should occur once a year and may also provide an opportunity to workshop new issues that Council may want to include in Code of Conduct

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Additional Training for Councillors

• Council should receive training on items such as:
• Respect
• Diversity and Inclusion
• Bias
• Social Media Use
• Confidentiality
• Conflict Resolution
• Conflicts of Interest

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Questions?

Today’s Presenters

Erin Crosley

403.444.4074�erin.crosley@mross.com

Kristen Hamilton

403.303.2905�kristen.hamilton@mross.com

�

Stephanie Lawless

403.303.9110�stephanie.lawless@mross.com

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Thank You.

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