Port Dalhousie's Community News Magazine  
Volume 12 Issue 4 APRIL 2008 #135

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CODE OF CONDUCT

For Elected and Appointed Officials

Dalhousie Peer will keep readers informed of the process of implementing the proposed Code of Conduct with regular updates.

 

 

Update: March 10, 2008

Reponse from City Clerk, Ken Todd:

Mr. Todd was asked on Februray 27/08:
Would you please provide me with the intended action regarding the proposed Code of Conduct for Elected and Appointed Officials, which I understand your department will be coordinating following the budget discussions?
In light of the fact that Councillor Gill suggested that the adoption of the Code of Conduct should be delayed in order to address the question of costs, specifically, for hiring an Integrity Commissioner, will the costs of such be discussed in relation to the 2008 budget?
If no allowance is made for hiring an Integrity Commissioner in 2008, will this impede the implementation of a Code of Conduct this year?

Mr. Todd responded:
Council has appointed a Committee to review the draft document and report back to Council. The Committee has met once and has asked that all the Boards and Committees of Council be circulated a copy of the report and asked for their comments. This is due to the fact that the code will also apply to them. The feedback has been asked for by the end of April- the Committee will then meet again. I would expect a report back to Council before the summer break in June. If a decision is made to hire an Integrity Commissioner after the budget is set, Council would then approve the hiring by way of a budget amendment; so to answer your question, this shouldn't impede Council's ability to hire a Commissioner in 2008 or impede the implementation in 2008.

Update: February 26, 2008

According to the assistant Clerk, "the Clerk's Dept. will be co-ordinating the meetings of the committee, however, it won't be proceeding until after council deals with the budget."

Update: February 20, 2008

Where is it?

On January 28/08, city council deferred passing a motion to adopt the draft Code of Conduct for Elected and Appointed Officials in order to get input from the council appointed committees and boards. A committee of council was formed to address this matter with the following members: Mayor McMullan and Councillors Elliott, Gill, Kushner and Williamson.

After 27 days, nothing has happened.

The Peer asked Councillor Elliott for an update and was informed that the committee had not met, did not have plans to meet, and was waiting for direction from the Clerks Department. Though the City Clerk was not available on the day of publication, The Peer did speak to his assistant who said she was not aware of any intention to direct the committee of council.

The Peer is concerned that the Code of Conduct is set up to die, and here’s why:

Councillor Kushner, who originally brought forward the motion under the previous council, wants to take out the word “perceived” and its derivatives.

Mayor McMullan has been accused by The Peer of pandering to a local activist group who worked on his campaign. Lana Wainman, (Peer Copy Editor) questioned his officiating at a fundraiser held by the activist group who claimed they were raising funds for heritage and fitness when he should have known the funds were to pay for a legal challenge at the OMB.

Though the Mayor responded professionally, Councillor Gill, who had not been named, responded, urging that she direct the accusation toward him as well so that he could take it to his lawyer and stated, her accusations “will not be tolerated." As a result, Ms Wainman accused Gill of attempting to intimidate her into retracting her statement. Had the Code of Conduct been in place, a complaint would have been filed. Councillor Gill may now feel uncomfortable with the bullying clause that is included in the draft Code.

That now brings us to Councillor Williamson who volunteered for a position on the Committee of Council when it was suggested that a fifth member be added for voting purposes.

Williamson has come under criticism in these pages for his blatant support of an activist groups attempts to derail the Port Place project. As a member of the Port Dalhousie Heritage District Advisory Committee (PDHDAC) Williamson knows that a vast majority of its members are also members of the activist group. He may also be concerned that the moment that the Code of Conduct comes into effect, a complaint will be lodged regarding a conflict of interest in regard to the Port Place heritage application for those members who are also active members of the activist group.

Here we have a Committee of Council made up of five members, four of whom may have reason not to want to see the Code implemented. The Peer does. We promise our readers and the citizens of St. Catharines that we will fight to have City Council adopt a Code of Conduct by which they and their appointed officials, both current and future, can be governed.

Check out our website for updates on the status of the Code of Conduct at www.peer2000.com.

January 25, 2008
From our February 2008 Issue

Awaiting Committee's Comments

by David Serafino

It took over three years for the City to table adopting a Code of Conduct for Elected and Appointed Officials, and we’re almost there. A draft code was presented to Council last December but, at the January 28th meeting, it was referred to a committee of council to get input from all boards and committees before further discussion would take place.

The request for a code was first made by Councillor Kushner in December 2004 but put on hold pending an update of the Municipal Act which was to include new provisions related to such things as a complaint process for ‘in camera’ meetings and provisions for the creation of integrity commissioners who would oversee the conduct of Councillors.

These provisions were originally included in the City of Toronto Act about two years ago and similar provisions have since been included in the Municipal Act which applies to all municipalities across the province.
Under the Municipal Act, a code of conduct is optional but several municipalities have adopted one and most have included “perceived conflicts” alongside “actual conflicts.” A perceived conflict may not be a conflict, but it may appear so.

The argument for acting on “perception” rather than exclusively on “actuality” is that someone wishing to lodge a complaint would not be restricted to having absolute proof beforehand that a wrongdoing is occurring. The code does not specify every incident where conflicts can occur nor does it reference a database containing all possible cases of conflicts of interest. Perception allows an issue to be brought forward for discussion without actually accusing an elected or appointed official of wrongdoing.

The draft code carried the words “a direct interest arises when an elected or appointed official may derive, or be seen to derive, some personal benefit or avoid personal loss.”

Councillor Kushner, asked that the words “or be seen to derive” be eliminated, arguing that perception may not be actuality. In a conversation with The Peer, Kushner stated that he believes this does not limit a person’s right to challenge any wrongdoing; however, it is The Peer’s contention that the problem remains of defining a “real” conflict without the benefit of precedence or definition.

Kushner’s original motivation for requesting a code stemmed from a situation with the former Hydro Commission, as well as with “leaks” from in-camera sessions, which he identified as a “serious concern.”
In a Jan. 3/08 Standard article, written by Marlene Bergsma, which specified the code would forbid such things as divulging city secrets, she quoted Councillor Bruce Williamson as saying “that’s not to suggest that councillors have been engaging in such dodgy activities in the past.”
Williamson, the sole councillor quoted, went on to opine that malicious or groundless complaints would be a barrier to getting good people to run for council or to volunteer for committees.

Now the committees themselves will have the opportunity to comment on the draft code of conduct and it will be especially interesting to see what the Port Dalhousie Heritage District Advisory Committee (PDHDAC) will have to offer.

The code states: A conflict arises when any elected or appointed official participates in activities which advance a personal interest at the expense of the City’s interests.

It is a well known fact that the vast majority of members of PDHDAC are made up of the executive members of PROUD—the group taking the city to the OMB to overturn the city’s decision to approve the zoning amendment for the Port Place development. Can this be perceived as anything other than “appointed officials participating in activities which advance a personal interest at the expense of the City’s interests”?
To date there had been no legal mechanism to challenge what can be perceived as a conflict. As previously pointed out by the City Solicitor, the Municipal Act only deals with conflicts of a pecuniary nature. However, the city’s new draft code of conduct employs phrases such as “financial or otherwise,” and “generally financial in nature but not limited to such.”

Another area where PDHDAC members may be in conflict lies in the phrase “...derive some personal benefit or avoid personal loss.”

Council denied the heritage application for Port Place relying solely on the heritage committees’ advice. Since the City Planner was not allowed to comment, the city chose to hire an outside planner to defend their position—a planner who would be fighting on the same side as PROUD.
Since PROUD is raising funds for their appeal, does this relieve them of costs associated with hiring their own planner? Can this be perceived by any reasonable and informed individual that their advice to council helps them derive a personal benefit or avoid a personal loss?

Let’s insist we not be made to wait for long to hear PDHDAC’s comments.

 

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