The best cure for insomnia is to read a Procedural By-Law, but bear with me: it can also be dramatic! It lays out exactly how meetings of councils and committees are supposed to happen, who needs to be there, what kinds of things can be discussed and how and in what order, when a closed-session meeting is appropriate, and so on. The by-law is shaped by the Municipal Act, and other relevant provincial legislation, but it also reflects the norms and expectations of the municipality, so while there are many things that each town’s procedural by-law needs to have, they’re all a little different too.
The same can be said of the Code of Conduct, which every municipality must have to go along with the Procedural By-Law. The Code lays out the expectations and requirements of members of Council, and is the basis of accountability for bad politics. I’ve written about the Code of Conduct before, as well as about the Integrity Commissioner who investigates breaches of the Code.
Together, the Code of Conduct and the Procedural By-Law shape every moment of every council meeting, but they tend to remain in the background. But lately I’ve been hearing these rules being invoked amidst political controversy in nearby municipalities, and I thought it worth explaining things a bit.
Setting A High Bar
The goal of a code of conduct is to set high expectations for the behaviour of public officials. They typically include requiring that members of council ensure that the statements we make, in council, public, and print, are true; that we not harass, bully, or disparage staff or other members of council or the public; and that we don’t use our office for personal gain or advantage. They ask us to acknowledge that staff have expertise that we do not have, and that staff are neutral and non-partisan, so that when staff present us with a report we can rely on it to be true and unbiased.
It would be lovely to say that such things are summed up as common sense and basic human dignity, but just by writing it down we have a helpful reminder to watch ourselves. And it is helpful: even the best of us can forget ourselves in a moment of frustration, and I’ve given an apology in council for words spoken in frustration before too.
But writing down these standards of behaviour don’t just give us a friendly reminder to be respectful and factual and impartial, they also provide a basis for investigations and enforcement of the Code of Conduct.
Almost Impossible to Enforce
The Code of Conduct applies equally to all members of a council, and anyone at all can file a complaint with the Integrity Commissioner (IC) about any member of council. The IC then conducts an investigation to determine if there was a breach of the Code; if they find that there was a breach of more serious laws they can pass the investigation to the police, but otherwise a breach of the Code results in a report that’s brought back to Council. Council then decides whether or not to take any action. Typically they do not.
Why not? If the Code of Conduct applies equally to all of us, and the IC has determined that there has in fact been a breach of it, isn’t it important for councillors to hold one another to account? Yes, but…
First of all, the punishments available to us are minimal: the worst that can happen is that a limited amount of council pay can be suspended, but the only other penalty is a public reprimand. Most codes of conduct leave the option of making a public apology as a remedy. The real punishment is to our pride alone. (Although, if we’re in a position to have violated the Code through a lack of decorum, our pride is almost certainly a factor!) It hardly seems worthwhile to participate in the process of slapping someone on the wrist after the reputational damage has been done.
Second, the social dynamics of asking all of council to discipline one member of council are tremendously awkward. We all have to work together for the good of the community, and the very fact that we’ll need to look each other in the eye across the council table until the end of the term makes it very difficult to punish each other.
A recent Integrity Commissioner investigation against Peterborough Mayor Jeff Leal found that he had threatened and bullied two other members of council. Peterborough Council voted against taking any punitive action against their Mayor, even though they had the power to do so.
Last year the province finally tabled legislation that would strengthen a council’s ability to uphold the Code, including removing a sitting member of council. Their legislation came years after they voted down multiple attempts by opposition parties and private members to table similar (and stronger) legislation, and they called an election before the legislation could pass. But their proposed solution to this problem still depended on a council voting to punish one of their members, something that usually only happens in the worst of cases because of the reasons I mentioned above.
“Weaponizing” Procedure?
One of the things that prompted this post was a recent open letter sent out to news outlets by Cobourg Mayor Lucas Cleveland. In it, Mayor Cleveland noted that he’s been targeted by a “‘weaponized’ Integrity Commissioner system.” I’ll start by saying that I can sympathize somewhat: being subject to scrutiny by anyone can be extremely difficult. I’ve lost sleep over questions from journalists, or seeing that a lawyer was cc’ed on an email from an angry resident, and I’ve never even been named in an investigation. I can imagine how stressful that would be.
Mayor Cleveland was indeed subject to an Integrity Commissioner investigation last year. He was cleared of the charges. Whether or not this is an example of a “weaponized” system is another matter.
Systems can be weaponized. There’s a well-documented phenomenon of frivolous lawsuits, called SLAPP suits or “Strategic Lawsuits Against Public Participation,” that are designed to intimidate critics to stop them from speaking out against something. It’s also common at sexual assault trials for people to imply that charges were only being brought to hurt the reputation of the accused, as if someone would go through the trauma of a public trial for petty revenge or some kind of gain. We’re clearly aware of the possibility of abuse of the system, and sometimes that gets used as a mark against the system itself.
I’m not here to weigh in on Mayor Cleveland, though we clearly stand on the opposite side of things on several important issues. There’s plenty of news lately, even aside from his open letter, on which people can form their own judgments. He’s also made public comments before, saying in a meeting that the County Council procedural by-law was being used to “silence” the people of Cobourg when the rest of Council did not pass a motion to further extend his speaking time. These statements are serious and should be taken seriously, and I hope that this post has provided some helpful context for members of the public who are doing so.
A Double Standard
Ultimately, most of these rules depend on the willingness of members of councils to engage with them. If there’s no real penalty for failure to do so, and if we’re unlikely to even be censured by our peers, these rules amount to a litmus test of whether or not we’re willing to be governed by norms of respect and decorum, even when those norms impose on our ability to say or do what we want. This creates a bit of a double-standard: conscientious members will control themselves, submit to and participate in investigations of their conduct, and make apologies when they’re out of line. (Mayor Cleveland appears to have done so.) But if a member decides not to do any of those things, there are no more serious penalties or remedies. For those who refuse to accept these standards, there effectively are no standards.
This is true of all rules that govern politicians. As we’ve seen in the US in recent years, if the leaders of the government don’t respect the institutions and norms on which that government functions, they can often do whatever they like and leave it to the opposition and pundits to determine if their actions were right or wrong. Systems of accountability are limited by how much we respect them.
That means that if a system is broken, we need to fix it, not get rid of it, or worse, ignore it as irrelevant. Not all critics of a broken system need to have a better solution in mind, but they certainly should be aware of and supportive of efforts to fix it. And when a political leader attacks the system of their own accountability, we should pay close attention. If the system is indeed broken and being misused, then it’s critical to fix it; and if not, then it’s just as critical to uphold the norms of having those standards of accountability against claims of their misuse.