The Integrity Commissioner for the Township of Muskoka Lakes has thrown out all complaints against Township Councilors made earlier this year by three different parties. The Commissioner, Robert Swayze, gave his report to Council on Friday after investigating complaints made against the councilors.
The report states he received 27 different complaints from Tim McDonald aimed at six of the councilors; two complaints by Glenn Zavitz against the same councilors; and two complaints against four other councilors by the Muskoka Ratepayers’ Association. All three parties had their complaint fees refunded.
For details on the complaints and Swayze’s response, his full report from the agenda package is repeated below:
SUBJECT: INFORMATION REPORT RE: COMPLAINTS TO THE INTEGRITY COMMISSIONER
RECOMMENDATION: BE IT RESOLVED THAT the report to Council from the Integrity Commissioner dated April 15, 2016 be received. Submitted By: Robert Swayze, 06/04/16.
The Province of Ontario issued a request for proposal for the construction of a small hydroelectric plant at the Bala dam in Muskoka and the proposal from Swift River Energy Limited was accepted in 2005. The reaction of the community was generally negative but some attempts over the years were made to receive local input and make changes to the plans that would benefit the community.
An environmental assessment was carried out and approval was given by the MOE with 69 requests for review to the Minister. The Minister confirmed the approval in 2013 and the Township brought an application for judicial review. The application was dismissed and the Township appealed to the Court of Appeal.
This was also denied. As early as 2010, a legal opinion from legal counsel to the Township advised that the Green Energy Act of the Province would likely prevent the municipality from stopping the project. The recommended approach was “to participate actively in the consultative process . . . and to focus on mitigative measures”.
The community has been divided and polarized by the Bala hydro project for the past 10 years. One member of Council I spoke to, used the word “destroyed”. I have received numerous complaints from two individuals and one ratepayer group, alleging that actions by members of Council have contravened the Code of Conduct, all of them relating to their political position on the Bala Falls project.
Two of the complaints are against 6 members of Council wishing to stay in the process and alleviate the impact on the community and one is against the 4 who support the various groups who wish to continue opposing the project.
My impression is that the complaints essentially ask me to take one side or the other which is not appropriate for an Integrity Commissioner. My role in this matter is to receive complaints against members of Council and to rule on whether the Township Council Members Code of Conduct (the “Code”) has been breached and no other.
The most extensive complaints (27 in number) were received by me in two packages from Mr. Tim McDonald of Walker’s Point, Muskoka. His sworn affidavit covering the complaints was dated February 1, 2016. They allege that the Mayor and Councillors Jean-Ann Baranik, Linda Barrick-Spearn, Gault McTaggart, Terry Ledger and Allen Edwards, in various ways, have contravened the Code.
I also have a copy of his 25 complaints to the Ontario Ombudsman. He also complained to the Premier and the Minister of Natural Resources concerning the threat that the project poses to a species of turtle.
I have carefully reviewed Mr. McDonald’s complaints to me and have divided them between his allegations that the Code has been contravened in respect of those sections of the Code which are general principles and those which prohibit specific conduct.
Most of the complaints refer to Section 4 of the Code which is a list of general principles and is headed “General Standards of Conduct”. Examples of the Code provisions under this heading are:
4.2 Members will conduct their dealings with each other in ways that maintain public confidence, focus on issues rather than personalities, and avoid aggressive, offensive or abusive language or conduct.
4.3 Members shall perform their official duties with integrity, accountability, ethics and transparency.
4.7 Council is responsible for and dedicated to providing good, effective and ethical government for the public in an open, accountable and transparent manner.”
He complains that on numerous occasions there was insufficient notice to the public, ratepayer input in meetings disallowed, failure to disclose information to the public and in general, favouring a developer contrary to the interests of the community.
I have confirmed with staff that every effort has been made to ensure that all legally required notices of all meetings were complied with. The receiving of deputations and the time extended to them is provided for in the procedural by-law and not under the jurisdiction of the Integrity Commissioner.
The conduct of members of Council in meetings is primarily under the jurisdiction of the Chair of the meeting, as advised by the Clerk. The Code prohibits aggressive behaviour but I must extend latitude to members of Council regarding their decorum and use of strong language when in political debate. Political debate is a healthy part of the democratic process and I must respect the Canadian right to freedom of expression. None of the meetings of Council are currently recorded or taped and the only evidence of inappropriate behaviour by Councillors in meetings is the claims of Mr. McDonald which are difficult to assess as to whether any of the statements made by Councillors crossed the line beyond fair political comment.
The decision to deal with the developer and participate in the negotiation of a lease is a political position of the 6 members of Council and as an unelected Integrity Commissioner, I cannot intervene.
I have identified three of Mr. McDonald’s complaints, which allege that the Code has been breached by specific kinds of behaviour. Firstly, a delegate to the January 26 Council meeting mentioned some confidential information concerning the prospective lease for Portage Landing. Mr. McDonald “logically” assumes that the leak came from a member of Council but he provides no further evidence beyond this assumption. Later in this report under the heading Ratepayer Group, I deal with a Facebook post on January 17 by Councillor Harding, which may have been the source of the information.
The second claim that a specific rule was breached is that several of the 6 members of Council attended a meeting with a representative of the developer at a local pub after the January 26 meeting of Council. Mr. McDonald has referred me to Section 7.1 of the Code prohibiting the acceptance of a benefit that is connected directly or indirectly with the performance of a Councillor’s official duties. Councillors meeting socially with developers is a common complaint I receive in many of my client municipalities. My answer is always that it is the responsibility of all members of Council to meet with developers for them to make informed decisions. If the meeting is social and the developer pays, that is acceptable so long as the practice is infrequent and the cost is minimal.
A third allegation of contravening a specific rule in the Code is that members of Council met privately with “corporate representatives who are trying to obtain financial benefits from Council.” I assume that this is a reference to the same meeting at the pub since there is no evidence of any other meeting.
He cites Section 5.2 which is set out below:
5.2 Members shall not, in their official capacity, attempt, directly or indirectly, to influence the decision – making process relating to the award of contracts, settlement of claims or other decisions. This includes but is not limited to direct or indirect personal contact or interaction with the parties administering or directly involved in such processes.
In my opinion, the intent of this section is to prohibit Council members from involving themselves in procurement matters delegated to staff which would be contrary to the purchasing by-law and to the Code as improper use of influence. In this case, the meeting at the pub was after the January 26 Council meeting which had finalized the terms of the lease.
I am of the opinion that I do not need to investigate Mr. McDonald’s claims any further because I am clear on all of the facts he relied on. For the above reasons, I hereby dismiss all of his complaints.
I understand the emotion involved in opposing what he regards as the desecration of a natural feature enjoyed by him. I do not consider his complaint as frivolous or vexatious and I recommend that his complaint fee be refunded.
I received a complaint from Mr. Glenn Zavitz of Torrance which was similar to that of Mr. McDonald. His affidavit is dated February 16, 2016 and complains about the same 6 members of Council. He begins with the function at the local pub after the Council meeting on January 26 attended by five of the six members complained about. He cites Section 7.1 of the Code which prohibits benefits connected with their official duties and Section 7.2 which extends the rule to spouses some of whom he claims also attended. This complaint is dismissed for the same reasons stated in relation to the McDonald complaint.
Mr. Zavitz then describes in detail the Special Council meeting of January 26, 2016 and the10 delegations, all in opposition to entering into a lease with the developer to facilitate the project. His complaint is that the six Councillors did not listen to the submissions and vote for not entering into the lease or at least defer the matter. This is not a complaint that an unelected Integrity Commissioner can respond to. He asks me to find that a violation of the Code occurred because a group of Councillors voted in accordance with their political position and not in accordance with the political position of the ratepayers present. In an E-mail to me, he best summarized his complaint when he said “I am very concerned by the actions of these 6, insofar as they appear to be completely close-minded to the Ward A ministrations around the Bala Falls issue.”
This complaint is also dismissed. I also do not find the complaints filed by Mr. Zavitz to be frivolous or vexatious and recommend that the complaint fee be refunded.
A ratepayer group notified 4 members of Council that it was informally complaining about them, (as provided for in the Code) because they left a meeting of Council purposely to deny quorum. They have requested that I not disclose the name of their group in my report. The four members of Council were Ruth-Ellen Nishikawa, Donelda Kruckel, Sandy Currie and Phil Harding. The group then requested my input and I advised them that in my opinion, leaving a meeting to deny quorum is a political tactic and not an abdication of responsibility.
They then abandoned their informal complaint against the four and filed a formal complaint against two of them on other grounds.
The first formal complaint was against Councillor Currie for lack of decorum during the special council meeting when he was disrespectful to the Mayor and Deputy Mayor. I dismiss this complaint for the reasons expressed in this report regarding similar complaints by Mr. McDonald. I find that his comments were part of vigorous political comment or debate which took place in the meeting.
The second formal complaint was against Councillor Harding and the first part alleged that in correspondence with the Mayor posted on Twitter, he made disparaging remarks which contravened several sections of the Code which are general principles. I find this correspondence to be political comment and I dismiss the complaint for the reasons expressed in this report.
The second part of the complaint against Councillor Harding is that he released on Facebook, confidential information regarding the lease from a closed meeting contrary to Section 8 of the Code. It appears that at the time of his post, 9:32 pm on January 17, the fact that Council was considering executing a lease with the developer was not public. However, a summary of the lease terms was made public earlier as part of disclosure in litigation with SAVETHEBALAFALLS.COM.
In any event, the summary was included 9 days later in the notice of the special council meeting on January 26th. I find that Councillor Harding did not disclose confidential information contrary to the Code and in fact he had a point to make.
The Township Solicitor in a letter dated February 1, 2016 made the statement:
“It is difficult to understand the justification for not providing a copy of the proposed lease as part of the agenda package, once all of the terms have been settled.”
I again recommend that the complaint fee be refunded as the complaints by the ratepayer group were filed in good faith.
DECISION: I repeat my impression that all complaints from both sides tried to draw me into the political issue of whether to support a negotiated lease or keep on fighting against the project. As Integrity Commissioner, none of my investigation looked into the merits of the Environmental Approval or the possibility of stopping the construction of the project. It is not my role to second guess political decisions and I do not carry out a performance appraisal of members of Council. That must be left to the electorate.
I hereby dismiss all of the complaints filed with me by the three complainants.