Integrity Commissioner By-Law

1. Short title

1.1 This By-Law may be referred to as the "Integrity Commissioner By-Law".

2. Definitions

2.1 Censure means an official expression of disapproval or condemnation;

2.2 Clerk shall mean the Clerk of the County;

2.3 Code of Conduct means County of Norfolk County ("Councillor Code of Conduct") as approved by Council, and as it existed on the date of the event or events giving rise to a Complaint;

2.4  County means the Corporation of Norfolk County or the geographic area of Norfolk County as the context requires;

2.5 Complaint means a request by a legal person that the Integrity Commissioner conduct an inquiry into an event or series of events alleged to contravene the Code of Conduct or any other procedures, rules or policies governing the ethical behaviour of members of Council. Except as provided otherwise, a Complaint must include both a sworn/affirmed affidavit and the payment of the refundable fee;

2.6  Complainant means a person who makes a Complaint;

2.7 Council shall mean the elected officials who constitute the County's municipal council;

2.8 Employee shall mean a person employed by the County, including those employed on personal service contracts and volunteers, but does not include members of Council;

2.9  Good Faith shall mean accordance with standards of honesty, trust and sincerity;

2.10 Integrity Commissioner shall mean the person appointed by Council to provide independent and consistent complaint investigation and resolution respecting the application of the Council Code of Conduct, ("Council Code of Conduct ") and to provide other services related to the Integrity Commissioner as outlined in the Municipal Act, 2001, S.O. 2001, c. 25, as amended.

2.11  Member means any Member of Council, and includes the Mayor;

2.12  Municipal Act means the Municipal Act, 2001, S.O. 2001, c. 25, as amended;

2.13  MFIPPA means the Municipal Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. M.56, as amended; and

2.14  Public Inquiries Act, means the Public Inquiries Act, R.S.O. 1990, c. P.41, as amended.

3. Appointment of Integrity Commissioner

3.1 Council shall appoint an Integrity Commissioner to investigate alleged breaches of this Code. Appointments shall be for a period of 5 years. The recommended candidate for Integrity Commissioner will be referred to Council for its approval.

3.2 Without limiting Council s authority to appoint an individual as Integrity Commissioner, the Integrity Commissioner may be:

a) retained by Council on a term contract constituting  fee for service ; or a "retainer plus fee for service" basis;

b) cross-appointed by Council together with one or more other municipal councils as the Integrity Commissioner for all of the municipalities.

3.3 The Integrity Commissioner shall complete any inquiry begun during his or her term notwithstanding the expiry of the term and this By-Law shall continue to apply with all necessary modifications.

3.4 If the Integrity Commissioner is unable to complete an inquiry in accordance with subsection 3.3, the Integrity Commissioner next appointed shall complete the inquiry.

3.5 The Integrity Commissioner may be removed before the expiry of his or her term of office, only for cause. In order to determine if cause exists, Council shall first receive legal advice from external legal counsel regarding same.

4. Role of Integrity Commissioner

4.1 The role of the Integrity Commissioner is to help ensure that Members perform their functions in accordance with the Code of Conduct and other procedures, rules or policies governing their ethical behaviour. In addition, the Integrity Commissioner may, upon request of Council or a Member, provide advice and rulings on ethical challenges, issues and dilemmas, as detailed by section 5.1(c), or 5.1(d).

4.2 The role of the Integrity Commissioner shall be expanded upon March 1, 2019 to include provision of services in regards to Sections 223.3(1), 223.3, 223.4, 223.4.1, 223.5 of the Municipal Act, 2001 S.O. 2001, c. 25. Until the effective date of March 1, 2019 the Integrity Commissioner shall not provide any services in regards to Sections 223.3(1), 223.3, 223.4, 223.4.1, 223.5 of the Municipal Act, 2001 S.O. 2001, c. 25.

5. Duties Of Integrity Commissioner

5.1 The Integrity Commissioner shall:

(a) At least once per term of Council, deliver an oral presentation to Members regarding the role of the Integrity Commissioner and ethical obligations and responsibilities of Members under the Code of Conduct and any other procedures, rules or policies governing their ethical behaviour.

(b) Once per term of Council, prepare written materials for distribution to and use by Members regarding the role of the Integrity Commissioner and ethical obligations and responsibilities of Members under the Code of Conduct and any other procedures, rules or policies governing their ethical behaviour.

(c) Upon written request, provide advice to individual Members regarding their ethical obligations and responsibilities under their Code of Conduct and any other procedures, rules or policies governing their ethical behaviour. This advice can include opinions on the appropriate course of action where Members seek guidance based on specific factual circumstances.

(d) Upon written request, provide advice and recommendations to Council regarding amendments to the Code of Conduct and any other procedures, rules or policies governing their ethical behaviour.

(e) Prepare and deliver an annual report to Council containing a summary of activities, if any, during the previous calendar year.

6. Making a complaint

6.1 Any legal person may act as a Complainant.

6.2 Complaints can be made by filing a sworn/affirmed affidavit, as provided in Appendix A to this By-Law, together with the refundable fee prescribed in Section 8.1 directly to the Clerk or designate;

6.3 Where a Complaint is filed with the Clerk, that individual is to forward the Complaint to the attention of the Integrity Commissioner, without added comment, on a forthwith basis.

6.4 Where a Complaint is filed by an Employee, by a Member or by Council, Section 8 does not apply.

6.5 Complaints filed by an Employee may be filed directly with the Chief Administrative Officer or designate. That individual is to forward the Complaint to the attention of the Integrity Commissioner, without added comment, on a forthwith basis.

6.6 Where a Complaint is filed by an Employee by a Council Member or by Council, the affidavit contained in Appendix A is not required; however, the provision of equivalent information and particulars is required.

6.7 A Complaint shall not be made available to the public except as may be required under the MFIPPA or as compelled by Order of Court.

7. Complaints outside Integrity Commissioner jurisdiction

7.1 If the complaint, including any supporting affidavit, is not, on its face, a complaint with respect to non-compliance with the Code of Conduct or the complaint is covered by other legislation or complaint procedure under another Council policy, the Integrity Commissioner shall advise the complainant in writing as follows:

Criminal Matter

(a) If the complaint on its face is an allegation of a criminal nature consistent with the Criminal Code of Canada, the complainant shall be advised that if the complainant wishes to pursue any such allegation, the complainant must pursue it with the appropriate Police Service.

Municipal Freedom of Information and Protection of Privacy Act

(b) If the complaint is more appropriately addressed under the Municipal Freedom of Information and Protection of Privacy Act, the complainant shall be advised that the matter must be referred to the Clerk and Solicitor for Access and Privacy review.

Other Policy Applies

(c) If the complaint seems to fall under another policy, the complainant shall be advised to pursue the matter under such policy.

Lack of Jurisdiction

(d) If the complaint is, for any other reason not within the jurisdiction of the Integrity Commissioner, the complainant shall be so advised and provided with any additional reasons and referrals as the Integrity Commissioner considers appropriate.

Matter Already Pending

(e) If the complaint is in relation to a matter which is subject to an outstanding complaint under another process such as a court proceeding related to a Human Rights complaint or similar process, the Integrity Commissioner may, in his/her sole discretion and in accordance with legislation, suspend any investigation pending the result of the other process.

8. Refundable fee

8.1 A Complainant shall pay to the Clerk a refundable fee in the amount of $150.00 upon the filing of a Complaint.

8.2 The fee payable under section 8.1 shall be refunded to the Complainant when the Integrity Commissioner files his or her report under section 12.1, except as may otherwise be required under this By-Law.

8.3 Where a Complaint is found to be frivolous, vexatious, or not made in good faith under section 10.8, the fee shall not be refunded.

8.4 Where a Complaint has been stayed under section 17.1, a Complainant may withdraw their Complaint and receive a refund of the fee.

9. Limitation period

9.1 Except as provided for in this section, the Integrity Commissioner shall not proceed with an inquiry in regard to a Complaint which is filed more than 180 days after the date when the event or the last event of a series of events which are the subject matter of the Complaint occurred.

9.2 Notwithstanding section 9.1, the Integrity Commissioner may proceed with an inquiry in regard to a Complaint which is filed after the expiry of the time limit under section 9.1 if the Integrity Commissioner is satisfied that:

(a) the delay was incurred in good faith;

(b) it is in the public interest to proceed with an inquiry; and

(c) no substantial prejudice will result to any person because of the delay.

9.3 A Complainant is deemed to have known the matters referred to in section 9.1 on the date the event, or series of events, occurred, unless the contrary is proven, the onus of which proof lies upon the Complainant.

9.4 Where, pursuant to this section, the Integrity Commissioner decides not to proceed with an inquiry he or she shall prepare and file a report under section

12.1 which applies with necessary modifications, setting out that decision.

10. Conduct of inquiry

10.1 When a Complaint is received by the Integrity Commissioner, he or she shall conduct an inquiry promptly, thoroughly and in a manner that ensures the Member who is the subject of the Complaint is given an opportunity to know the nature of the Complaint against him or her and to make representations respecting the Complaint to the Integrity Commissioner.

10.2 Information concerning the nature of a Complaint disclosed to a Member shall be used by the Member only for the purpose of making representations respecting the Complaint to the Integrity Commissioner and not for any other purpose.

10.3 In conducting an inquiry into a Complaint regarding a Member, the Integrity Commissioner may exercise any power given to him or her under this By-Law or under Part V.1 of the Municipal Act, 2001 including the power to conduct or not to conduct an inquiry under the Public Inquiries Act.

10.4 If the Integrity Commissioner is satisfied that a Complaint regarding a Member does not contain sufficient information to set out a prima facie contravention of the Code of Conduct or other procedures, rules or policies governing a Member's ethical behaviour, he or she shall stay the inquiry into the Complaint.

10.5 Before staying an inquiry under subsection 9.4, the Integrity Commissioner shall give the Complainant an opportunity to provide additional information respecting the Complaint and in doing so shall explain to the Complainant what additional information would be required to set out a prima facie contravention of the Code of Conduct or other procedures, rules or policies governing a Member's ethical behaviour.

10.6 Where the Complainant provides additional information under section 9.5, the Integrity Commissioner shall consider all of the information provided and shall reassess whether there is sufficient information to set-out a prima facie contravention of the Code of Conduct or other procedures, rules or policies governing a Member's ethical behaviour.

10.7 Where the Integrity Commissioner has stayed an inquiry into a Complaint and, after the stay, additional information is provided which, on its own or together with the information provided before the stay, sets out a prima facie contravention of the Code of Conduct or other procedures, rules or policies governing a Member s ethical behaviour, the Integrity Commissioner shall lift the stay and conduct the inquiry.

10.8 If the Integrity Commissioner is satisfied, after considering the information contained in a Complaint and any other relevant information, that a Complaint regarding a Member is frivolous, vexatious or not made in good faith, he or she shall not conduct an inquiry or, where that becomes apparent in the course of an inquiry, shall terminate the inquiry.

10.9 Where, pursuant to section 10.4, the Integrity Commissioner decides not to proceed with an inquiry, he or she shall prepare and file a report under section 12.1, which applies with necessary modifications, setting out that decision.

10.10 Where, pursuant to section 10.8 the Integrity Commissioner terminates or decides not to conduct an investigation, written notice of the decision shall be provided to the Complainant and the Member.

11. Opportunities for resolution

11.1 Following receipt and review of a formal complaint, or at any time during the investigation, where the Integrity Commissioner believes that an opportunity to resolve the matter may be successfully pursued without a formal investigation, and both the complainant and the Member agree, efforts may be pursued to achieve an informal resolution.

11.2 The Integrity Commissioner may also decide during their investigation that complaints relating to the following matters may not be Code of Conduct issues and may more appropriately be dealt with through other channels. With the consent of the complainant, the Integrity Commissioner may refer complaints as follows:

(a) Formal complaints related to the interaction of municipal staff and Members of Council may be handled by the Chief Administrative Officer, Clerk and Solicitor;

i) The Chief Administrative Officer may request the involvement of the Mayor s Office if in their opinion such involvement would assist in mediating.

12. Member responsibilities during investigations

12.1 Where the Integrity Commissioner has received a Complaint regarding a Member, he or she shall, on the earliest date after he or she has made a decision and no later than 60 days after receiving the Complaint, prepare and file with the Clerk a report to Council regarding their inquiry into the Complaint.

12.2 The Integrity Commissioner may make interim report(s) to Council where necessary and as required to address any issues of interference, obstruction, delay or retaliation encountered during the investigation.

12.3 Where, in the opinion of the Integrity Commissioner, it is not possible to prepare and file a report to Council within the time set out in section 12.1, shall advise Council of this together with:

(a) the reasons for their inability to prepare and file the report; and

(b) the date on or before which the report will be prepared and filed.

12.4 The Integrity Commissioner shall provide a copy of their report filed under section 10.1 to the Complainant, to the Member who is the subject of the Complaint and to all other Members at the same time as filing the report with the County Clerk.

12.5 The report filed under section 12.1 shall include:

(a) the nature of the Complaint;

(b) if the Complaint was filed after the expiry of the time limit under section 9.1, the Integrity Commissioner s findings regarding sections 9.3 and 9.4, which findings shall be made in accordance with the civil standard of the balance of probabilities;

(c) the evidence gathered from the Complaint and from the inquiry;

(d) the Commissioner s findings of fact regarding the Complaint, which findings shall be made in accordance with the civil standard of the balance of probabilities;

(e) the Commissioner s decision, based on the findings of fact, that the Member contravened or did not contravene the Code of Conduct or other procedures, rules or policies governing a Member's ethical behaviour;

(f) where the Commissioner decides that the Member has contravened the Code of Conduct or other procedures, rules or policies governing the member's ethical behaviour, will recommend to Council a penalty under 13.1, if any, to be imposed".

12.6 Where the Integrity Commissioner s delegate under section 16.1 decides that a Member has contravened the Code of Conduct or other procedures, rules or policies governing the Member s ethical behaviour, but that the Member was acting in accordance with the Commissioner s advice given under section 5.1 (c) and had, before receiving this advice, disclosed to the Commissioner all the relevant facts that were known to the Member, the delegate shall so state in the report under section 12.1 and no penalty shall be imposed.

12.7 "The County Treasurer shall ensure the remuneration of the Member is suspended in accordance with Council direction, following Council's receipt of an Integrity Commissioner Report."

12.8 Where the Integrity Commissioner has filed a report in respect of an inquiry with the County Clerk under Section 12.1, the County Clerk shall place the report on the next available Council Agenda for information purposes.

13. Penalties

13.1 The penalties for a Member who contravenes the Code of Conduct or other procedures, rules or policies governing the Member s ethical behaviour shall be those authorized under subsection 233.4(5) of the Municipal Act, 2001, namely:

(a) a reprimand;

(b) suspension of remuneration paid to the Member in respect of the Member  services for a period of up to 90 days;

(c) another appropriate remedy such as requiring the Council Member to issue and apology.

14. Complainant and legal confidentiality

14.1 The Integrity Commissioner and any person acting under his or her authority shall preserve the confidentiality of all documents, material or other information, whether belonging to the County or not, that come into his or her possession or knowledge during the course of duties or the investigation as required by section 223.5 of the Municipal Act, 2001.

14.2 Pursuant to section 223.5(3) of the Municipal Act, 2001, the confidentiality of this complaints process prevails over the MFIPPA.

14.3 The Integrity Commissioner is entitled to have access to such information belonging to or used by the County, including legal advice that has been given to Council or County Employees, as the Integrity Commissioner deems necessary to conduct an inquiry.

14.4 A disclosure to the Integrity Commissioner of legal advice:

(a) shall be deemed not to constitute a waiver of solicitor-client privilege;

(b) shall be used only for the purpose of conducting an inquiry and not for any other purpose; and

(c) the contents or substance of such legal advice shall not be disclosed in any public report prepared by the Integrity Commissioner or any person acting under the instructions of the Commissioner, including his or her delegate under section 16.1.

14.5 The Integrity Commissioner and every person acting under the instructions of the Commissioner, including his or her delegate under section 16.1:

(a) shall preserve the secrecy of all confidential documents, material or information, whether belonging to the County or not, that come into their possession or to their knowledge in the course of their duties; and

(b) without limiting the obligation to preserve secrecy under section 14.4(a), shall ensure that by his or her actions and, in particular, any reports prepared comply at all times with the MFIPPA and with the Council Procedural By-law, regarding personal and/or privileged information.

(c) upon conclusion of the provision of services by any Integrity Commissioner all files associated with work done for the County shall be returned to the municipality where the secrecy and confidentiality of the documents will be maintained.

14.6 The Integrity Commissioner shall identify all complainants to the Member who is subject of the complaint and require that they maintain the identity of the complainant as confidential."

15. Complaint and reporting exclusion period

15.1 Despite any other provision of this bylaw, no Complaint may be referred to the Integrity Commissioner 150 calendar days immediately prior to the date of a regular election held pursuant to the Municipal Elections Act, 1996, S.O. 1996, Chapter 32, as amended.

15.2 If the Integrity Commissioner receives a Complaint as described within section

15.1 the Integrity Commissioner shall not commence to investigate said complaint until the day after the next municipal election or as may be otherwise outlined in the Municipal Act, 2001.

15.3 The Integrity Commissioner shall not make any reports to Council regarding an inquiry in the 150 calendar days prior to a regular municipal election.

16. Integrity Commissioner conflict

16.1 The Integrity Commissioner shall, in writing, delegate his or her duties to conduct an inquiry, including the exercise of powers under the Public Inquiries Act, the duty to report on an inquiry and the power to impose either of the penalties under section 13.1, where the Integrity Commissioner has an actual or apparent conflict of interest.

16.2 In making a delegation under section 16.1, the Integrity Commissioner shall first satisfy himself or herself that the person to whom the duties are to be delegated is fully capable of carrying out these duties.

17. General provisions

17.1 Appendix A, being the Complaint Form, which is attached to this By-Law, forms a part of it.

17.2 This By-Law comes into force and effect on the 25th Day of May, 2018.

Appendix A

• Complaint To Integrity Commissioner Form (PDF)