1. Wishart Municipal Law Group (WMG)
&
Expertise for Municipalities Non-Profit
Association (E4m)
Tools for Success in Municipal Leadership!
2. Who we are... WMG
โข Division of Wishart Law Firm LLP in Sault Ste. Marie
โข Municipal Law Professionals (team of lawyers)
โข Significant Legal Experience that covers all aspects of a
municipal operation
โข Providing a new service delivery model for small
municipalities
โข Membership Model
โข โAsk a Lawyerโ Minutes
โข Joint policy drafting workshops
โข Shared Learning
โข On-going Legal/Best Practice Updates
โข Similar to having in-house Counsel
3. Who we are... E4m
โข Non-profit Association of Municipal Experts
โข Our goal is to empower excellence in the Municipal Sector by
providing support to small municipalities such as:
A) Rent-a-Clerk, Treasurer or CAO for short term vacancies or leaves
B) Workplace investigations
C) Integrity Commissioner
D) Organizational Design & Development (Not-so-Service Reviews)
E) Workshops/Training
F) Research/Policy Writing
G) Advocacy
H) Strategic and Other Planning (i.e. Community or Economic Development)
โข Fees are affordable and a percentage stays in E4m to be
reinvested in the sector
4. We want to Help you Figure Out HOW
โข E4m โ Capitalizing on Municipal Experience
โข WMG โ Creative Legal Counsel
โข We are Community Leaders โ and OUR Community is all
Municipalities in the North
โข Philosophy is to promote Municipal Excellence, Creativity and
Innovation
โข We looked at our assets and realized that our staff and lawyers
are motivated to help figure out How
5. Avoid Saving into Crisis
โข Strict saving by Council can create crisis
โข Avoids obtaining early and preventive advice
โข When asking for advice, seek an advisor that tells you โhow you canโ, not
why you canโt
โข Spending in your community signals Councilโs confidence in
community
6. Decision Making Authority
โข Section 11 of the Municipal Act spells out Councilโs decision making
authority
โข May pass by-laws respecting the following matters
โข Governance Structure
โข Accountability & Transparency
โข Financial Management
โข Public Assets
โข Economic, social and environmental well-being
โข Health, safety and well-being of persons
โข Services authorized to provide
โข Protection of persons and property, including consumer protection
7. Decision Making Authority
โข Section 11 (3) of the Municipal Act spells out Councilโs spheres of jurisdiction
โข Highways, including parking and traffic on highways
โข Transportation systems, other than highways
โข Waste Management
โข Public Utilities
โข Culture, parks, recreation and heritage
โข Drainage and flood control except storm sewers
โข Structures, including fences and signs
โข Parking, except on highways
โข Animals
โข Economic Development services
โข Business Licensing
8. The Role of Council
โข The role of council is set out in section 224 of the Municipal Act, 2001:
โข s.224. It is the role of council,
โข (a) to represent the public and to consider the well-being and interests of the
municipality;
โข (b) to develop and evaluate the policies and programs of the municipality;
โข (c) to determine which services the municipality provides;
โข (d) to ensure that administrative policies, practices and procedures and controllership
policies, practices and procedures are in place to implement the decisions of council;
โข (d.1) to ensure the accountability and transparency of the operations of the
municipality, including the activities of the senior management of the municipality;
โข (e) to maintain the financial integrity of the municipality; and
โข (f) to carry out the duties of council under this or any other Act.
9. Staffโs role set out in the Municipal Act
โข Municipal administration โ In the Municipal Act, 2001
โข s.227. It is the role of the officers and employees of the
municipality,
โข (a) to implement councilโs decisions and establish administrative
practices and procedures to carry out councilโs decisions;
โข (b) to undertake research and provide advice to council on the policies
and programs of the municipality; and
โข (c) to carry out other duties required under this or any Act and other
duties assigned by the municipality.
10. Council Leadership
โข Create space for projects and events, โof and byโ the people as Peter says
โข Facilitate Public Engagement
โข Ask WHAT CAN WE DO TO MAKE THINGS HAPPEN
โข WHAT MATTERS IN YOUR COMMUNITY
โข ASK THE KIDS โ THEY MAY NEED Kulinโs Waterslide
โข Council sets the policy and service levels to permit/accommodate/facilitate
and fund projects of and by our communities
โข This is done AT the Council table with decisions of Council made at a
meeting
11. Council Leadership
โข Explore how possible ideas are
โข Individual Councillors CAN explore ideas, talk to people, talk to the
community and then bring the ideas back to Council
โข Encourage โFresh eyesโ
โข Develop a term of Council plan โ what Council WILL achieve during
this term
โข Great opportunity to develop Peterโs ASSET MAP
โข Council should be way too busy facilitating a move forward to spend
time in conflict (Remember, negative people should be taxed!!)
12. Protection under S. 448 of the Municipal Act
โข Members of Council cannot be sued personally for actions within
their role and carried out in good faith
โข Donโt tell the plow truck driver to plow this road now
โข Donโt drive the plow truck yourself
โข Breaching Legislation
โข MCOIA
โข MFOIPPA
โข OHSA
13. Bill 68 and the Municipal
Act
Code of Conduct
Staff Council Relations Policy
Integrity Commissioner
14. What is Bill 68?
โข Bill that amends Ontarioโs municipal legislation, including:
โข the Municipal Act, 2001;
โข the Municipal Conflict of Interest Act; and
โข the Municipal Elections Act, 1996
15. Navigating the Change
(After March 1, 2019)
Municipal Act
โข Municipalities must now have Code of
Conduct
โข Municipalities must appoint and
indemnify an Integrity Commissioner
โข Municipalities must adopt a Staff
Council Relations Policy
Municipal Conflict of Interest Act
โข The form in which conflict of interest
declarations are to be made
โข Detailed restrictions on influencing
decision making when having a
conflict of interest
โข Integrity Commissioner to investigate
AND PROSECUTE allegations of a
breach
16. Bill 68 and
the Municipal Conflict of
Interest Act
Changes to the Declaration of Conflict
Investigation by Integrity Commissioner
Personal Liability
17. Municipal Conflict of Interest Act (MCIA)
WARNING!
โข This may be the most significant legislation change of your career as a
Councillor as it relates to your personal finances.
โข These changes WILL change how (and how often) the MCIA is
enforced and can have devastating personal financial impacts on
offending Councillors
18. How do I declare a conflict?
โข After March 1, 2019, conflicts of interest MUST be in writing
โข Best practice:
โข When the agenda is circulated โ declare right away
โข At the meeting โ declare as soon as you believe you are in a conflict
โข Your municipality will have a policy or protocol about how to declare
โข If you miss a meeting where there was a matter you had a conflict
with declare prior to the start of the next meeting
19. What is a โpecuniary interestโ...
โข The Term โpecuniary interestโ is not defined in the MCIA, however,
the courts have interpreted it to mean โa financial interest, an
interest related to or involving moneyโ:
see Mondoux v. Tuchenhagen (2010), 107 OR (3d) 675, 79 MPLR (4th) 1 (Ont SCJ) at para 31.
20. โข The Member has a personal โpecuniary interestโ in the matter being
considered by Council, Committee of Council or Local Board.
โข Personal financial gain (positive)
โข Personal financial loss (negative)
โข NOTE: There is no threshold for quantum
Direct Conflict of Interest
21. Indirect Conflict of Interest
โข Section 2 of the MCIA
2 For the purposes of this Act, a Member has an indirect pecuniary interest in
any matter in which the Council or Local Board, as the case may be, is
concerned, if,
(a) The Member or his nominee,
(i) is a shareholder in, or a director or senior officer of, a corporation that does not offer
its securities to the public,
(ii) Has a controlling interest in or is a director or senior officer of, a corporation that
offers its securities to the public, or
(iii) Is a Member of a body,
that has a pecuniary interest in the matter ; or
22. โข Section 2 of the MCIA continuedโฆโฆ.
(b) the Member is a partner of a person or is in the employment of a person or
body that has a pecuniary interest in the matter
Indirect Conflict of Interest
23. Deemed Conflict of Interest
โข Section 3 of the MCIA
Interest of certain persons deemed that of Member
3 For the purposes of this Act, the pecuniary interest, direct or indirect, of a
parent or the spouse or any child of the Member shall, if known to the
Member, be deemed to be also the pecuniary interest of the Member.
24. Complaint Process
THIS IS A GAME CHANGER
Prior to March 1, 2019 a person complaining that a
Councillor was in breach of the MCIA had to start a
lawsuit in the Superior Court to enforce the
complaint.
Actions in the Superior Court routinely cost in
excess of $10,000.
This meant that the actual enforcement of
complaints were rare.
25. Complaint Process โ
THIS IS A GAME CHANGER
AFTER MARCH 1, 2019, COMPLAINTS ARE FREE!!
- Complaints are made to the Integrity Commissioner
- Complaints are to be made within 6 weeks of when the complainant
became aware of the breach โ they must swear and affidavit
confirming this
- Once a complaint is made, it must be investigated by the Integrity
Commissioner
- Funded by the Municipality
26. Complaint Process โ
THIS IS A GAME CHANGER
If the Integrity Commissioner determines that a breach has occurred, they
are encouraged by the legislation to prosecute the matter in the Superior
Court
- This litigation on behalf of the Integrity Commissioner is funded by the
Municipality
- The Counsellor may have to fund their own defence
- The successful party is typically awarded โcostsโ by the Court
$$ THIS MAY HAVE MAJOR FINANCIAL IMPACT ON COUNCILLORS $$
$$ FOUND IN BREACH OF THE ACT $$
29. Advice Cont.
โข Requests for Advice must be in Writing
โข Advice from Integrity Commissioner shall be provided in writing
โข This process is confidential
โข Municipalities are wise to decide how the seeking of advice will be
administered and funded
โข Many options exist
โข Individual budgets
โข Limit on spending
โข Personal expense after a cap
30. Advice Cont.
โข Advice from an Integrity Commissioner needs to be timely. Often an
issue will appear on an agenda and a Councillor will need advice
before the meeting.
โข When choosing an Integrity Commissioner, look for a commitment to
answer routine questions within 72 hours and set up a process for
that ability.
โข Some more complex questions may require longer. Develop a process
to defer matters where Councillors are seeking advice.
31. Public Education
โข Integrity Commissioners can provide educational information with
respect to MCIA, Codes of Conduct and related policies, procedures
and By-Laws to Members, the Municipality and Members of the
public
32. Contact Us โ We want to Help you figure out
HOW
Paul Cassan
Wishart Municipal Law Group
Phone: (705) 949-6700 ext. 230
pcassan@wishartlaw.com
Peggy Young-Lovelace
Expertise for Municipalities
Cell: (705) 863-3306
peggy@e4m.solutions
