CODE OF CONDUCT REVIEW Staff Report
Report from the CAO recommending a formal review of the Town's Code of Conduct to meet new legislative requirements under the Community Charter.
TOWN OF VIEW ROYAL FINANCE & ADMINISTRATION REPORT
TO: Committee of the Whole DATE: April 27, 2023 FROM: K. Anema, Chief Administrative Officer MEETING: May 9, 2023
CODE OF CONDUCT REVIEW
RECOMMENDATION:
THAT the Committee recommend to Council that the Town of View Royal Code of Conduct report dated April 27, 2023 be received and reviewed on a future date.
PURPOSE OF REPORT:
- To seek Committee support for a Code of Conduct review.
- To present items for Committee discussion upon which Code of Conduct changes may be prepared.
- To seek additional items that the Committee may wish to include in the review.
BACKGROUND:
Council Codes of Conduct are a relatively new phenomenon in British Columbia and have been adopted under section 114(4) of the Community Charter which allowed municipalities “to do anything incidental or conductive to the exercise or performance of any power, duty or function conferred on a council or municipality by this or any other enactment.”
Accordingly, at its November 2, 2021 meeting, View Royal Council adopted the Town of View Royal Code of Conduct policy (see Attachment “A”).
With royal assent on November 25, 2021 to Bill 26 – Municipal Affairs Statues Amendment Act (No. 2), 2021, reference to Codes of Conduct appeared in the Community Charter when two new sections (113.1 and 113.2) were introduced.
These sections require local governments to decide whether to implement or review their code of conduct within the first six months of the inaugural meeting (section 113.1(1)). In the case of View Royal where a code of conduct already exists, Council must decide whether it should review its code of conduct.
As set out in the Community Charter, prior to making this decision, Council must:
“(a) consider the prescribed principles for codes of conduct, (b) consider the other prescribed matters, if any, and (c) comply with the prescribed requirements, if any, including requirements respecting public notice or consultation.” (section 113.1(2))
Should Council determine that it does not wish to review the existing code of conduct, it must make available for public review, on request, a statement describing the reasons for its decision (section 113.1(3)).
The legislation further describes a reconsideration provision. That is, if Council chooses to not review the existing code of conduct at this time, it must reconsider this decision again before January 1, 2026. In that reconsideration, Council is to take the same steps as outlined in section 113.1(2) and, if the same decision is confirmed – that is to not review the code of conduct – to again make available for public review, on request, a statement describing the reasons for its decision.
Staff recommend that a Code of Conduct review be undertaken. This report provides an overview of the items that can be considered in that review. Staff will make these documents available within teams to collect feedback on these items, and asks if there are additional items that should be included in the review.
DISCUSSION:
In reviewing a Code of Conduct, it is key to explore legislated guidance, best practices, and other considerations against the current Code of Conduct to see where there may be areas for improvement.
The only substantive guidance provided by the Province appears in section 2 of the Principles for Codes of Conduct Regulation, BC Reg 136/2022 which states:
The following principles are prescribed for the purposes of sections 113.1(2)(a) [requirement to consider code of conduct] and 113.2(2)(a) [reconsideration of decision respecting code of conduct] of the Act as principles that a council must consider before making a decision under section 113.1(1) or in a reconsideration under section 113.2(1):
(a) council members must carry out their duties with integrity; (b) council members are accountable for the decisions that they make, and the actions that they take, in the course of their duties; (c) council members must be respectful of others; (d) council members must demonstrate leadership and collaboration.
Digging more deeply, it is important to look to best practices. These are described in the Union of BC Municipalities/Local Government Management Association, and the BC Ministry of Municipal Affairs April 2021 document entitled “Forging the Path to Responsible Conduct in Your Local Government” (see Attachment “B”). This guide outlines practical ways to prevent conduct issues and pathways to address them should they arise.
For specific considerations, the following items are presented for the Committee’s thought, discussion, and feedback:
Policy or by Bylaw?
Firstly, Council must turn its mind to whether it wishes to consider adopting a Code of Conduct bylaw rather than an updated policy document. With a bylaw, there is often more of a sense of a weight or significance attached, if only because a bylaw requires multiple readings consideration before adoption whereas a policy can be amended by one resolution. If Codes of Conduct, at their base level, are about accountability to the public, a document that can be amended or removed by a simple majority vote at one Council meeting does not adequately promote that public accountability.
- Staff recommend that the Code of Conduct be a bylaw.
To whom does the Code apply?
The scope of the Town’s Code applies to “Members”, defined at section 2 to include Advisory Body Members and Council Members.
- Staff recommend that the scope remain as described in the current Code of Conduct, that is, applying to Advisory Body Members and Council Members. To broaden the scope would open a very wide opportunity for potentially unproductive and unnecessary “busy-work” for staff.
Who gets to make a Complaint under the Code?
a.) Under the current Code of Conduct, both sections 13(a) and 14(a) state that only a “Member who has identified or witnessed conduct by a Member… may file a complaint…”.
- Staff recommend that these sections be clarified with the deletion of “witnessed” and simply read “Member who has identified conduct by a Member…”.
b.) Section 13 (b) indicates that “Individuals are encouraged to pursue this informal complaint procedure as the first means...”
- Staff recommend that “Individuals” be replaced with “Members” for clarity.
Who is Involved in Resolving Informal Complaints?
a.) The current Code of Conduct, section 13(a), describes a procedure for informal complaints that sees involvement by the Mayor (or Acting Mayor if the Mayor is the subject of the complaint) in an attempt to resolve complaints though it is best practice to keep elected officials out of the complaint process as much as possible.
- Staff recommend that the informal resolution either occur only as between the parties to the complaint or be facilitated by a third party.
b.) The current Code of Conduct does not include provisions that allow for preliminary vetting of complaints, including specific powers to dismiss complaints summarily or for lack of jurisdiction.
- Staff recommend that the Code of Conduct include additional informal resolution opportunities such as through an advisor or a mediator.
What will the Investigator’s Fact-finding Abilities Include?
Section 14 of the current Code of Conduct describes the formal complaint procedure but does not describe the extent of that person’s work which can include, for example, speaking to anyone relevant to the complaint, requesting disclosure of documents relevant to the complaint, or accessing any record in the custody or control of the Town, within the meaning of the Freedom of Information and Protection of Privacy Act (FIPPA), with the exception of records subject to solicitor-client privilege. A Code of Conduct can also include a duty on Council members to cooperate wholly in investigations.
- Staff recommend that the Code of Code include a description of the investigator’s fact-finding abilities and the duty for Council members to cooperate wholly in investigations.
Limitation Period for Making a Complaint
Section 14(a)(ii) of the current Code of Conduct indicates that incident or complaint is to be reported as soon as possible after the incident itself. Best practice points to adding a limitation period, such as sixty days. This timeframe provides enough time to make the complaint, does not allow for indefinite complaint period, and ensures the matter is fresh in Council members’ minds.
- Staff recommend that the Code of Conduct include a sixty-day period from the date of the incident to submit complaints.
Timeline to Process a Complaint
Section 14(1)(xii) of the current Code of Conduct sets out that an investigation will begin within two weeks of receipt of the filing of a complaint and be completed within thirty business days following such time with reasonable extensions possible. While this may appear to be “good customer service”, best practices point to a longer window of time – ninety days – to facilitate flexibility and unforeseen circumstances and subsequent thirty-day extensions, with notice to the parties. This longer timeframe allows the focus to be on the issue at hand as opposed to the process and administration around that aspect.
- Staff recommend that the Code of Conduct be amended to reflect a ninety (90) day timeline with thirty (30) day extension periods if required and with notice to the parties.
Reasons to Not Advance a Complaint
The current Code of Conduct does not include a provision to halt the complaint process in the event the subject of the complaint ceases to hold office for any reason. The following provision is suggested:
“Where a Complaint is made against a Council Member who, during the course of the Complaint procedure, ceases to hold office, the Investigator may close the Complaint and notify the Complainant, and if applicable, the Respondent, of this decision.”
In this way, the investigation does not have to be undertaken, or, if already initiated, does not need to continue, should the subject of the complaint cease to hold office.
- Staff recommend that the Code of Conduct include a provision for the complaint to be closed should the subject of the complaint cease to hold office.
Complaint Withdrawal
The current Code of Conduct does not include provisions for a complainant’s withdrawal of their complaint. It raises the question – if a request for the withdrawal of a complaint were to be made, can an investigation still take place?
This topic is worth explicitly addressing in the Code as, once a complaint is made, who has ownership of that complaint? This could be a particularly vexing question should there be a serious allegation that Council is unable to investigate should the complaint be withdrawn.
- Staff recommend that a provision be added to the Code of Conduct that does not allow for a complainant to withdraw their complaint.
Moratorium
Many Codes of Conduct contain moratorium language to cover the campaign period. For example:
“The Investigator must reject a Complaint received regarding a Council Members seeking re-election in the period from the first day of the nomination period up to and including general voting day.”
This provision will ensure that conduct during the nomination period does not become the subject of a complaint.
- Staff recommend that a provision be added to the Code of Conduct setting a moratorium on complaints from the first day of the nomination period up to and including general voting day.
Remedy of Remuneration Reduction
Remedies are set out in section 15 of the current Code of Conduct. The only remedy not included in this section is remuneration reduction. While there is legal authority to include this type of provision in the Code of Conduct, provisions like these have not yet been tested in court.
- Staff recommend that the remedy of remuneration reduction be added to the Code of Conduct and that Council Remuneration Policy #0500-036 be amended to reflect this concept.
Vexatious Complaints?
It is proposed that a period of time, such as twelve months, be established where no additional complaints will be accepted from a Member if it is determined that that person has filed a vexatious complaint in the previous twelve-month window.
- Staff recommend that vexatious complaint language be added to the Code of Conduct.
Will the information in investigation reports be discussed in open or closed meetings? Will discussions on sanctions be in open or closed meetings?
While increased transparency can be achieved through the dissemination of information, FIPPA compliance is required and many records around Code of Conduct matters cannot be released publicly. For example, legal advice is the subject of in camera meetings through solicitor-client privilege. The Committee should discuss whether it would like release information from investigation reports to the public by discussing them in open meetings and whether discussions on sanctions should occur in open meetings.
- That the Committee provide direction as to whether they would like investigation reports and voting on sanctions to be at open or closed meetings.
FINANCIAL IMPLICATIONS:
Staff time spent on this initiative will be some of the larger costs for this project as well as a potential legal review.
CONCLUSION:
A code of conduct is a living document and periodic review is important to the health of an organization.
TIME CRITICAL:
Councils are to decide “within six months after its first regular council meeting following a general local election” (Community Charter, section 113.1(1)) whether to review its code of conduct or not.
The inaugural meeting was held on November 1, 2022; therefore, it is now time to decide if Council wishes to undertake a review.
THAT the Committee recommend to Council that the Town of View Royal Code of Conduct report dated April 27, 2023 be received and reviewed on a future date.
SUBMITTED BY: Kim Anema, Chief Administrative Officer
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