The new councillors elected for the first time in October 2018 have spent the last year fighting for change against an old guard that continues to dig its heels in just to make a point.
By Cameron Kroetsch
Published November 24, 2019
I'm not a fan of all the vagueness swirling around right now about the consequences to individual Councillors if any one of them might have breached the confidence of their Council colleagues and revealed information from an "in camera" meeting.
I'm hoping to answer some questions that have been plaguing me, like: What are the actual penalties? What might they have been able to say and when? What can they do to prevent this from happening again? I think I have some answers and my hope is that this will get some more information out into the public realm to help people form opinions during the inevitable fallout in the coming weeks and months.
It's important to say, from the start, that I'm not a lawyer. My thoughts are based on my understanding of legislation, research of the City's Code of Conduct, chats with professionals I trust, and my own experience for more than a decade on boards, councils, and committees.
The public is angry that individual Councillors, or City Council itself, didn't make the public aware of a 24 billion litre spill of raw sewage into the Chedoke Creek when they were formally told about it in detail by staff in January 2019. Many people, myself included, have suggested that either Council or individual Councillors should have spoken out about this publicly. In that spirit, I thought it was important to unpack some of the penalties for speaking out and the directions that could have been taken to make this public.
If an individual Councillor violated Council's confidentiality rules, they may have had a complaint filed against them and be subject to a penalty under the City's Code of Conduct (outlined in sections 14-16 below).
14. If the Integrity Commissioner concludes that, in his or her opinion, a Member has contravened the Code of Conduct, he or she may:
(1) impose the penalty of a reprimand upon the Member; or
(2) impose the penalty of suspension of the remuneration paid to the Member in respect of his or her services as a Member of Council, for a period of up to 90 days.
15. The Integrity Commissioner shall not delegate the power to impose the penalties under section 14, but shall exercise the power personally even where an inquiry into a Complaint is conducted or reported on by a delegate of the Integrity Commissioner.
16. The Council may also, upon receiving a report from its Integrity Commissioner, take such further or other action as are within its lawful powers with respect to the subject-matter of the report and/or with respect to the Member of Council in question, including:
(1) removal from membership of a committee or local board;
(2) removal as Chair of a committee or local board;
(3) repayment or reimbursement of moneys received;
(4) return of property or reimbursement of its value; and/or
(5) a request of an apology to Council, the Complainant, or both.
The maximum financial penalty is a fine of 90 days' pay (or about $23,862).
While City Council could vote to pursue legal action against an individual Councillor outside of the Code of Conduct, which could involve a further financial remedy, there's this section (below) from 223.2 (1-3) of the Municipal Act that would likely have to enter into the discussion when attempting to do so.
Code of conduct
223.2 (1) A municipality shall establish codes of conduct for members of the council of the municipality and of its local boards. 2017, c. 10, Sched. 1, s. 18.
(2) Without limiting sections 9, 10 and 11, those sections authorize the municipality to establish codes of conduct. 2017, c. 10, Sched. 1, s. 18.
No offence or administrative penalty
(3) A by-law cannot provide that a member who contravenes a code of conduct is guilty of an offence or is required to pay an administrative penalty. 2017, c. 10, Sched. 1, s. 18.
This suggests that not only can Codes of Conduct not be used to confer criminal or civil guilt but that they may also be restricted in how they measure out the payment of penalties. I don't know enough about what constitutes an "administrative penalty" but it wouldn't surprise me if there was at least some wiggle room there with respect to its interpretation.
The possibility of that wiggle room is at least one reason why every Councillor should get their own legal advice when it comes to huge issues like this.
Relying on the City to have your best interests in mind is dangerous. The Corporation of the City of Hamilton is going to look out for its employees and its overall financial and other material risks. It's not going to consider a politician's duty to their constituents. That's simply not the job of the City's legal staff or the outside lawyers that they hire to provide advice.
Having your own lawyer means foregrounding your priorities and considering legal questions from different perspectives. If you're a Hamilton City Councillor and you don't have a good municipal lawyer on retainer, go get one.
I think it could have made all the difference in a situation like this. Let me explain.
There was a vague but public report issued in July 2018. That report leaked the very seemingly boring information that a gate had been left open and that raw sewage had leaked out (not noting the extent of the leak or how long it had been spilling into Chedoke Creek).
In my view, and the view of some others I've spoken with, that was just enough for any Councillor who was informed of the report's existence "in camera" in January 2019 to have demanded, in public, a technical explanation or report back from staff with greater detail. Either a technical explanation or a report back from staff would surely have triggered the release of the information about the extent and duration of the spill.
It would also likely have absolved any Councillor from the severity of significant financial penalties as a result since they would not have been divulging anything confidential but rather pointing out nothing more than a report that had been made available 6 months earlier. For those of the public watching the comings and goings of Council and some in the media, this simple gesture would likely have been all that was needed to uncover the truth.
But I don't think that everyone was able to speak out about this in the same way. The heavy financial penalty for breaking confidence is real and, I would argue, not really something that everyone on Council can bear equally.
Some members of Council may not be in the same financial position as others. The Mayor, or those who have been earning a government salary for more than a decade, might be able to better weather the loss of 3 months' salary.
I don't think we can scoff at this with a "they should have thought about this before running for Council".
All of the new Councillors, before they were sworn in, knew just as much as I did about this when I was a candidate, and that wasn't much. Candidates for Council are often not any more informed about what goes on behind closed doors at City Hall than the general public are.
In what I would argue is their first actual month on the job, new Councillors were not in a position to be able to make nuanced choices about how and when to violate the Code of Conduct. For those who are coming into a brand new job, after just having gone through a financially burdensome election process, that risk is compounded and only mitigated by tenure and privilege.
I, for one, will not be launching into tirades directed at our three newest City Councillors, at least not based on what I know right now. The leaking of 24 billion litres of sewage didn't happen on their watch, but in the previous term, and I'm not convinced that at least a handful of Councillors in that previous term didn't know about this either ahead of or during the most recent municipal election.
What I do know is that those elected to Council for the first time in October 2018 have spent the last year fighting for change against an old guard that continues to dig its heels in just to make a point. They have put up with everything from under-the-breath public mutterings about "how things are done around here" to pointed chastising and misogynistic condescension.
We don't have to bear the burden of this constant visceral bullying. It's easy for all of us to say what we would do from the outside looking in, myself included. So, let's do our best to support change, show patience to our trail blazers, and practice equity in our analyses.
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