2. Accountability and transparency
Ensuring accountability and transparency is one of council’s roles under section 224 of the Municipal Act, 2001 (the Act), and is a priority in maintaining public trust. Councillors are, of course, accountable to the public as elected officials. However, it is also important that procedures and policies are clearly set out and accessible, and that the day-to-day operations of the municipality are transparent.
Ontario municipalities and members of council operate under a legislated accountability and transparency framework that include rules for the municipality and rules for members of council and local boards. Local accountability and transparency frameworks consist of a mix of requirements and options.
Key requirements for municipalities include:
- adopting policies related to accountability and transparency specified in section 270 of the Municipal Act, 2001
- establishing a code of conduct for members of council and certain local boards, ensuring access to an Integrity Commissioner
- certain Municipal Conflict of Interest Act and open meeting requirements
Discretionary options for municipalities include appointing additional accountability officers, such as a municipal Ombudsman or auditor general. Municipalities may also wish to adopt a broader range of local policies than those mandated under section 270 of the Municipal Act, 2001.
Adoption of policies
Many municipalities have developed policy manuals to provide a basis for sound decision-making, and to help ensure that policies are implemented and applied in a consistent way. The policy manual is a reference and information source for council, the administration and the public. Because the policies and procedures it contains may cover many of your municipality’s functions and responsibilities, a policy manual can also be a valuable training and orientation tool for new councillors and staff.
Section 270 of the Municipal Act, 2001 requires municipalities to have policies on:
- sale and other disposition of land
- hiring of employees
- procurement of goods and services
- when and how to provide notice to the public
- how the municipality will try to ensure accountability and transparency to the public
- delegation of powers and duties
- the relationship between council members and municipal officers and employees
- the manner in which the municipality will protect and enhance the tree canopy and natural vegetation in the municipality
- pregnancy leaves and parental leaves of members of council
Codes of conduct and other ethical rules
Codes of conduct usually set out expectations and standards for councillor conduct. Codes may help prevent ethical conflicts and help in their resolution, serve as a basis for council orientation and training, and serve as a reference throughout the operation of the council’s term.
Municipalities are required to establish codes of conduct for members of council and certain local boards and include the following subject matters in their local codes:
- gifts, benefits and hospitality
- respectful conduct, including towards officers and employees of the municipality or of local boards
- confidential information
- use of municipal or local board property
With the growing importance of accountability and integrity, more municipalities have adopted codes of conduct for members of council and certain local boards. Some have also adopted other procedures, rules and policies governing the ethical behaviour of those members.
Sample considerations: codes of conduct
It is up to municipalities to decide on the content and style of their codes of conduct for members of council and local boards. At the same time, as noted above, municipalities are required to include certain subject matters in their codes of conduct.
It is up to municipalities to decide how to develop their codes. Here are some matters that a municipality may wish to consider when developing and reviewing their codes of conduct:
- Working with local boards when developing local board codes of conduct
- Deciding what subjects to include in local codes of conduct (beyond those that are required by the above-described Minister’s regulation)
- Reviewing and updating existing codes of conduct, including consulting with their Integrity Commissioner on an appropriate review cycle and whether to include it in the code of conduct.
- Including rules about accepting and disclosing gifts, benefits and hospitality of a certain monetary value
- Establishing standards of respectful conduct. Some municipalities have included in their codes of conduct specific rules addressing member conduct at meetings, member conduct towards other members, the public and complainants. Some municipalities have also described in their codes what would be considered a disrespectful conduct (for example bullying and harassment)
- Establishing a local process for complaints about a councillor’s conduct and addressing matters such as how complaints are to be made, time limits for making a complaint, confidentiality, options for informal resolution, investigation procedures, and reports
- Working with their Integrity Commissioner to help establish an accessible and open complaints process for codes of conduct
- Reviewing how their codes of conduct fit with the other aspects of their local accountability regime, for example how it fits with an existing council-staff relations policy, or the roles and responsibilities of local Integrity Commissioners
Codes of conduct for other municipal officials
Other statutes may also require specific or general codes of conduct relevant to municipal council. For example, section 7.1 of the Building Code Act, 1992 (BCA) requires municipalities to establish and enforce a code of conduct for the chief building official and inspectors. The BCA outlines the purposes of a code of conduct and requires that a code of conduct outline rules for its enforcement. According to the BCA, purposes of a code of conduct are:
- promoting appropriate standards of behaviour and enforcement actions
- preventing practices which may constitute an abuse of power
- promoting appropriate standards of honesty and integrity
A code of conduct must include policies or guidelines to be used in responding to allegations of a breach and must set out disciplinary actions that may be taken. The Building Code Act, 1992 also requires the municipality to ensure that a code of conduct is brought to the attention of the public.
To help support integrity and accountability in public office, municipalities may pass by-laws to establish certain accountability officers. Municipalities are required to provide access to an Integrity commissioner, and may establish a municipal Ombudsman, Auditor General and/or Lobbyist Registrar.
Role of the Integrity Commissioner
Municipalities are required to provide access to an Integrity Commissioner. The Integrity Commissioner’s role is to perform, in an independent manner, the functions assigned by council with respect to:
- applying the local codes of conduct for members of council and certain local boards
- applying local procedures, rules, and policies governing the ethical behavior of members
- applying certain Municipal Conflict of Interest Act (MCIA) rules to members
- requests for advice from members of council and certain local boards respecting their obligations under:
- the local code of conduct applicable to the member
- local procedures, rules or policies governing the ethical behavior of the members
- certain sections of the MCIA
- providing educational information to the public, the municipality and members of council and certain local boards about local codes of conduct for members and about the MCIA
The Commissioner’s functions also include conducting inquiries into requests from council or a local board, a member of council or a board, or a member of the public about whether a member of council or a local board has contravened the applicable code of conduct. If the Commissioner reports that, in their opinion, a member of the council or local board has contravened the code of conduct, the municipality may impose a penalty in the form of a reprimand or a suspension of pay for a period of up to 90 days. It is up to the municipality to decide how to proceed after an Integrity Commissioner’s report. Some municipalities have considered measures that may be outside a code of conduct process, such as requesting an apology and/or removing the member from committees
Considerations for Integrity Commissioner arrangements
There is flexibility in how a municipality provides for the responsibilities.
A municipality could consider possibilities such as:
- appointing its own Integrity Commissioner and assigning all mandatory responsibilities to that Commissioner
- appointing its own Integrity Commissioner and assigning some of the mandatory responsibilities to that Commissioner, and making arrangements for the remaining mandatory responsibilities to be provided by a Commissioner of another municipality
- sharing an Integrity Commissioner with another municipality, for example across the upper tier
- making arrangements for all of the mandatory Integrity Commissioner responsibilities to be provided by a Commissioner of another municipality
A municipality could also consider assigning additional responsibilities (beyond the mandatory responsibilities) to an Integrity Commissioner. When deciding on the arrangements for an Integrity Commissioner, a municipality may wish to consider a number of things, including among others:
- the anticipated workload of the Integrity Commissioner in the municipality, as well as the workload in other municipalities if the commissioner is shared between them
- a suitable budget for the anticipated workload of the Integrity Commissioner (such as payment or remuneration that the municipality will provide to the Integrity Commissioner)
- how the Integrity Commissioner will remain independent from the municipality
- where and how the public, council and staff will communicate with the Integrity Commissioner, especially if the municipality is making arrangements with an Integrity Commissioner of a different municipality
- how long the Integrity Commissioner is expected to work for the municipality
- what will happen if issues arise with the work arrangements
- the qualifications and skills for an Integrity Commissioner (such as education, experience, knowledge, etc.)
Indemnity for an Integrity Commissioner
An indemnity is often provided through an agreement stating that one person must compensate another for certain costs (for example costs of legal actions).
Municipalities are required to provide an indemnity to an Integrity Commissioner or any persons acting under their instructions for certain defence costs. This indemnity helps protect Integrity Commissioners against certain financial risks related to their duties.
The amount of an indemnity varies on a case-by-case basis depending on the terms of the indemnity and the facts involved. It is up to the municipality to negotiate details of the indemnity with the Integrity Commissioner.
Rules related to Integrity Commissioner activities during elections
There are rules related to regular elections that apply to the Integrity Commissioner’s role. For example, there can be no requests made to an Integrity Commissioner for an inquiry about whether a member has contravened the applicable code of conduct starting on nomination day and ending on voting day in a regular election.
For more information about the role of the Integrity Commissioner see sections 223.3 to 223.8 of the Municipal Act, 2001 and the legislation generally, as well as the Municipal Conflict of Interest Act.
Other accountability officers
To help support integrity and accountability in public office, municipalities may pass by-laws to establish the following:
- A municipal Ombudsman. The municipal Ombudsman investigates, in an independent manner, decisions and recommendations made and acts done in the course of the administration of a municipality, certain local boards and certain municipal corporations. The municipal Ombudsman is a separate office from the Ontario Ombudsman, who also has a role with respect to municipalities.
- An Auditor General. The Auditor General helps council in holding itself and municipal administrators accountable for the quality of stewardship over public funds and achieving value for money in municipal operations. The Auditor General must perform their duties in an independent manner. The Auditor General’s responsibilities do not include the responsibilities of the municipal auditor.
- A lobbyist registry and registrar. A municipality may appoint a lobbyist registrar who performs, in an independent manner, the functions assigned by the municipality with respect to the lobbyist registry and other related matters.
- A closed meeting investigator. A municipality may appoint an investigator who investigates, in an independent manner, complaints about closed meetings. Should a municipality not appoint an investigator, the Ontario Ombudsman is the closed meeting investigator, by default, for the municipality. See section 239 and other sections of the Act to find out more about closed meeting rules.
Municipal Conflict of Interest Act matters
The Municipal Conflict of Interest Act (MCIA) sets out ethical rules for council and local board members if they have certain pecuniary (financial) interests in a matter that is before their council or local board at a meeting. For example, a member may have to take steps if they are present at a council or local board meeting where that member’s land will be discussed.
The possible penalties for contravention of the MCIA include:
- suspension of pay for a period of up to 90 days
- removal from office
- disqualification from office for up to seven years
The courts decide whether or not a contravention of the MCIA has taken place.
A member with a financial interest is required – with certain exceptions – to:
- disclose the interest and its general nature before the matter is considered at the meeting
- not take part in the discussion or voting on any question in respect of the matter
- not attempt to influence the voting before, during, or after the meeting
- immediately leave the meeting, if the meeting is closed to the public
If a member of a council or local board has a financial interest in a matter, the MCIA generally prohibits them from using their office to attempt to influence decisions or recommendations being considered by municipal or local board employees (or by persons with authority delegated from council). For example, a member with a financial interest in a matter could not, in most instances, try to influence a decision or recommendation of a municipal employee who is considering the matter.
A member who discloses a financial interest at a meeting is required to file a written statement of their interest, either at the meeting or as soon as possible afterwards. (This is in addition to the existing requirement for the clerk or secretary to record members’ declarations of interest in the meeting minutes.)
Municipalities and local boards are required to establish and maintain a registry of statements and declarations of interests of members and make it available for public inspection. The registry helps increase transparency by providing a compilation of written statements and declarations in one place.
Integrity Commissioner role in Municipal Conflict of Interest Act matters
Local Integrity Commissioners may investigate a complaint from an elector or a person demonstrably acting in the public interest concerning an alleged contravention of MCIA rules that apply to members.
After completing an investigation, an Integrity Commissioner may decide to apply to a judge for a determination as to whether the member has contravened the MCIA. If an Integrity Commissioner decides not to apply to a judge, the person who made the complaint may still do so.
The Ontario Ombudsman
The Ontario Ombudsman has a role with respect to municipalities. This role builds on the local accountability and transparency framework in the Municipal Act, 2001. The role is in addition to the Ontario Ombudsman’s role as the default meeting investigator for municipalities that have not appointed a local meeting investigator.
The Ontario Ombudsman supports transparency in government and may recommend improvements.
The Ontario Ombudsman may investigate municipalities on complaint or on the Ombudsman’s own initiative. Although the Ontario Ombudsman may investigate, they cannot compel municipalities to take action. The Ombudsman may make recommendations to council and the municipality as part of their report. It is up to the municipality whether and how to address any recommendations made by the Ombudsman.
It is up to the Ombudsman how to respond to complaints. For example, the Ontario Ombudsman’s practice is to investigate complaints made to local integrity officers (for example, a local Ombudsman) only after the local complaint processes are completed.
The Ontario Ombudsman does not replace locally established complaint mechanisms or act as an Integrity Commissioner for municipalities. Local integrity officers and municipal codes of conduct are an important part of Ontario’s local accountability framework.
Certain local boards (for example, police services board and children’s aid societies) may be exempted from the Ontario Ombudsman’s oversight. For more information, see Ontario Regulation 114/15 under the Ombudsman Act and the legislation generally.
Privacy and confidentiality
Personal privacy and other confidentiality issues are an important practical and legal consideration for municipal councillors and staff.
The Municipal Freedom of Information and Protection of Privacy Act is the primary statute for privacy and confidentiality. It sets out rules for collection, use and disclosure of personal information. According to these rules, councillors (and staff), in most circumstances, would protect personal privacy and only collect, use and disclose personal information in accordance with those rules. For example, depending on circumstances, councillors and staff may or may not be authorized to obtain personal information in the course of their duties. This might mean that at times councillors could not obtain this kind of information from staff.
Municipal freedom of information legislation also regulates confidential information of other kinds (in addition to personal information). Other statutes and laws (including local by-laws) also regulate personal and other kinds of confidential information.
Councillors who may have received personal or other confidential information in the course of their duties will have related responsibilities, such as protecting and safeguarding the information. Councillors may wish to check with municipal staff about appropriate measures and the municipality’s practices (for example, providing for physical security to help prevent unauthorized disclosure or loss of confidential information).
Helpful considerations: section 2
- Familiarize yourself with the municipality’s policy manuals to help with appropriate decision-making
- Familiarize yourself with the municipality’s code of conduct for council members, and work with council members to make updates to your code of conduct if necessary
- Familiarize yourself with the Municipal Conflict of Interest Act, which sets out a primary set of ethical rules for council and local board members regarding pecuniary (financial) conflicts of interest
- Familiarize yourself with the role of the Ontario Ombudsman to better understand that role in connection with municipal matters
- Familiarize yourself with your other responsibilities, for example matters relating to personal privacy and other confidentiality issues