ACCOUNTABILITY AND TRANSPARENCY UNDER BILL 8: MUNICIPALITIES AT THE CROSSROAD

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1 ACCOUNTABILITY AND TRANSPARENCY UNDER BILL 8: MUNICIPALITIES AT THE CROSSROAD 63 rd Annual Conference & Trade Show 2016 May 5, 2016 Suzanne Craig, Integrity Commissioner

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3 Municipal Accountability Bill 130 created Part V.1 of the Municipal Act, 2001 giving municipalities authority to: Establish Codes of Conduct Appoint Accountability Officers Integrity Commissioners Auditors General Ombudsmen Lobbyist Registrars and create Lobbyist Registries Closed Meting Investigators

4 Background Several high profile scandals brought integrity into the public spotlight Montreal, Brampton, London, Mississauga, Toronto Conflicts of interest Corruption and Fraud Bias

5 The Province of Ontario responds Ontario s Premier truly disturbing behaviour It is up to the municipal level of government to address the issues they face. It is not the provincial government s role, nor its intention to impose its preferences upon the government Province of Ontario the Public sector and MPP Accountability and Transparency Act, 2014 (originally Bill 17) Provincial Ombudsman The new legislation comes in the wake of years of public demonstrations, rallies and calls to expand Ombudsman oversight to all parts of the MUSH sector. Since 2005, there have been more than 130 petitions and 15 private member s bills tabled in the legislature to this effect, supported by members of all parties

6 What does this mean for Ontario Municipalities? AMO- It represents duplication and inefficiency, and importantly, it suggests that Wynne s Government does not trust in the capacity of municipal government to expose and address questions about performance and integrity. AMCTO We are further concerned that these new municipal accountability measures are not reflective of the Municipal Act recognition of municipal governments as a responsible and accountable order of government. Bill 179 expired when the Legislature dissolved on May 2, 2014

7 Bill 8 On January 1, 2016, the Ontario Ombudsman was invested with power to investigate: Any decision, recommendation, action or omission, which in the course of the administration of a municipality, affects any person in his or her personal capacity The Ombudsman Act was amended to provide the Ombudsman with the jurisdiction to investigate any decision, recommendation or act done or not done by a public sector body, including a municipality Section 13 of the Ombudsman Act added a new definition of municipal sector entity : a municipality, local board and a municipally controlled corporation. The jurisdiction of the Ombudsman was expanded to include the investigation of a matter within the jurisdiction of the: municipal Ombudsman, Integrity Commissioner and Auditor General and on his own motion

8 The Ontario Ombudsman Will not investigate: Until the appeal process has been exhausted For any matters under the jurisdiction of a municipal Ombudsman or Integrity Commissioner, Until a complaint is filed but a decision is made to not investigate An investigation has been completed The time for filing a complaint has expired

9 Is the Ombudsman s jurisdiction clear? AMO request clarification and pointed out that it is often difficult to distinguish between legislative and administrative functions AMO requested amendments to narrow the scope of the Ontario Ombudsman ambit of investigation but the modifications were not accepted The Ontario Ombudsman may investigate and overrule a decision by a: Municipal Ombudsman Municipal Integrity Commissioner Municipal Lobbyist Registrar Municipal Auditor General

10 Closed meetings Ontario Ombudsman : Remains the default closed meeting investigator under s.239.1(b) of the Municipal Act, 2001 Does not have jurisdiction to overrule any decision made by a municipal closed meeting investigator Council meetings will now be required to be closed to the public if the subject matter of the meetings concerns an on-going investigation of the municipality, local board or municipality-controlled corporation by: Ontario Ombudsman Municipal Ombudsman Closed meeting investigator

11 Ombudsman Draft Report Pirating Our Property the former Ontario Ombudsman criticized the City of Oshawa for not maintaining the confidentiality of his draft closed meeting investigation report New sections 18(3.1) and (3.2) of the Ombudsman Act: To ensure that any documents provided to a public sector body or person shall be maintained in confidence and are not disclosed and are not retained or copied Expressly overrides FIPPA and MFIPPA

12 New Ombudsman jurisdiction: what does this mean for municipalities? How will Councils and municipalities protect their interests? Will municipalities continue to appoint their own integrity officials? What does this mean for the municipally appointed Ombudsman, Integrity Commissioner, Lobbyist Registrar and Auditor General Govern Yourselves Accordingly by: Remembering that the Ombudsman is the process of last resort Developing and implementing clearly explained, fair and transparent complaint processes Establishing Codes of Conduct and appointing Integrity Commissioners

13 CODE KEY PRINCIPLES Elected Officials: Act with fairness toward all and not to any specialized interest group Avoid any interest or activity which is or may be perceived to be in financial and personal conflict with officials duties Responsibly oversee management of the public purse Facilitate complete, understandable and timely access to information by the public

14 PROCEED WITH CAUTION Head, Council and Staff acting internally Gifts, Events and Procurement acting externally Access, Confidentiality and Privacy IPC Order MO- 3281

15 CODE OF CONDUCT COMPLIANCE and BEYOND Advice and Recommendations Complaint Procedure Outside the Commissioner s jurisdiction Municipal Conflict of Interest Act Complaints regarding Town Administration

16 COUNCILLOR BIAS It is a generally agreed principle of the law that a decisionmaker should be free of bias and should be perceived to not be biased in making their decisions. However, the law recognizes that municipal councillors will have various decision-making roles

17 ETHICS: Doing the right thing when held to a higher standard At his trial for fraud, breach of trust, and bribery, Senator Mike Duffy said under oath that he had listened to all the previous testimony and, No one has taken the stand to say I didn't follow the rules. (Tor Star,April3/16) Wynne promises new fundraising rules after Toronto Star probe Sweeping changes to political fundraising will be unveiled this fall, says Premier Kathleen Wynne.

18 QUESTIONS Suzanne Craig