- by John Tamming

What the Office Is All About

The Office of the Integrity Commissioner (OIC) is in charge of complaints against municipal councillors. Other councillors, staff or ordinary ratepayers are free to launch any such complaint. They usually allege that the councillor has breached the municipal Code of Conduct or the municipal Conflict of Interest Act. Those laws spell out some predictable rules of the road: Don’t make money off your position, don’t trash talk or intimidate staff, don’t insult citizens, don’t be in a conflict of interest.
Each town or city has on standing retainer its very own integrity commissioner.
I have seen them operate up close for three years now. I have also read many of their decisions. They do some good but, in candour, I don’t have a lot of use for the office.

Why not Trust the Electorate?

For starters, I find the name pretentious and Orwellian in equal measure. I don’t particularly care for unelected persons telling councils whether they act with integrity or not. If a councillor has acted like a clown or pig, let the voters have their say next election. If the conduct rises to the level of defamation, harassment or constructive dismissal, the civil courts provide ample remedy. If the councillor has engaged in criminal breach of trust, the criminal courts are ready at hand.

Under the clown (or pig) category, I present to you one Mr. Dave Bylsma, mayor of a Niagara municipality and a known anti-vaxer. This year he emailed one of his critics and asked if she thought her covid vaccine affected her menstrual cycle. The press and social media properly hammered him. He will wear that comment into the next election. Why is that not enough? Why did someone have to make the predictable complaint to the commissioner (“please tell us if asking a resident about her periods is off side”), with the predictable ruling (“outrageous conduct”) and the predictable recommended penalty (loss of a week’s salary)?

They are Swamped in their own Conflict of Interest

Rather ironically, they are by definition immersed in their own conflicts of interest on every single case they handle. Each municipal council must retain and pay an integrity commissioner for the term of the council. They can replace that commissioner with someone else. The commissioners are thus financially incentivized not to clash with the councils who deliver their paycheque. They are tempted not to call balls and strikes but rather massage the situation so that they are not offside the majority of council. That they may not be so influenced is quite beside the point. There is the appearance of a conflict and, in any other judicial setting, that would be enough to disqualify the judge. If the commissioners were separately appointed (and perhaps paid) by the provincial government, this would not be an issue.

They are Not that Efficient

On a practical level, I don’t find the commissioners to be terribly efficient. They can take months to evaluate the most straightforward of cases. Locally, we had a councillor who both voted to approve a city lease for a restaurant and, after that vote, bought shares in the place. Like it or not, provincial law clearly does not prohibit a councillor from buying an interest after he or she has cast a vote. I get the community outrage which triggered the complaint. The optics of such after-acquired shares are plain awful and a sign of abysmal judgement. But it was clear from day one that no law was broken. Rather than triaging this complaint at the very first instance, the commissioners took months to investigate and issued a detailed report which found the obvious to be, well, obvious. Meantime, Mr. O’Leary had to wear the complaint for the better part of a year. That was wrong and I publicly called out the commissioners for their conduct.

I myself was the defendant in another complaint. The facts were straight forward, in writing, and uncontradicted. The commissioners took the better part of a year to investigate and decide. While I admit that I acted imprudently and did not like the decision, they could easily have made their call within a week or two, not a year.

They Are Expensive

Tiny Elliott Lake burned through $350,000 for just two years of OIC complaints. Much of that expense is unaccountable. By law, councils have to pay their accounts in full and we are not entitled to ask for a docketing or breakdown of their time. Lawyers who can bill at will and not account to you for their time – a nice gig if you can get it.

They Insist on being both Mediator and Judge

They wear two hats far too often. They first investigate and mediate a dispute. If mediation or talks fail, they believe they are perfectly within their rights to arbitrate that very same dispute. That is just nuts. People often speak without prejudice and frankly in the course of settlement discussions. For a judge to have access to all those background discussions as he or she rules is not fair. They should automatically refer a failed negotiation out to another commissioner for a hearing. But that rarely happens: many commissioners appear loath to relinquish a paying retainer.

They Don’t Get Politics

Too many commissioners don’t seem to get politics. They don’t accept their own limited role. They have far too expansive, far too grandiose a view of their mandate. They function as schoolmarms or meddling bureaucrats whose task it is to render political debate sterile. They see a Code of Conduct which proscribes “insulting language” or language which “undermines public confidence in council” and they go to town, reprimanding those councillors who use lively and perhaps unflattering language to make their point.

Fortunately, there are exceptions. Commissioner Guy Giorno (who pens by far the most intelligent and helpful rulings) has repeatedly said that Codes of Conduct must not be used to neuter the necessary cut and thrust of political debate and he has also ruled that the Charter right to freedom of expression trumps Codes of Conduct any day of the week.

Commissioner Jeffrey Adams however, of Principles Integrity (our local commissioner), appears to see things quite differently. In a frankly nonsensical ruling involving Midland council, he has suggested that councillors comport themselves as lawyers do. No matter how strong the dispute at hand, the lawyers call themselves “friends” and conduct themselves with the utmost of respect to one another while in court. Need I tell you that Mr. Adams is a lawyer?

This comparison is dead wrong. What Adams misses entirely is that lawyers are agents for the disputants themselves and it is unseemly (and unhelpful) for lawyers to get as passionate and as involved in the subject matter as their clients. But a politician is no such agent and should serve as no such buffer. He is elected on a platform and should be allowed to be as unconstrained as possible as he serves his constituents. We should not force the cattle breeder, the shop keeper, the occupational therapist, the retired school teacher or any other of our representatives to learn to talk like lawyers before they can represent the people. What arrogance. Why should our council meetings be any less lively than our parliaments?

They are Regularly Weaponized Against Democracy

But perhaps the worst thing about integrity commissioners is that people weaponize them to block needed civic discourse. Far too often, their office is used to stymie the normal and welcome clashes of politics.

Let me offer a couple of fairly local examples. Steven Van Leeuwen was deputy mayor of Wellington North, just outside of Guelph. He did not like the COVID lockdowns, believing that they violated our Charter rights and caused far more misery than their benefits warranted. He went public with his views and in fact joined a lobbying group which served as a megaphone for his opinions. Council fired him as Deputy Mayor and, for added measure, launched a complaint to the OIC. Because, well, why not? It’s free entertainment for everyone except the ratepayer.

In a 258 paragraph decision, replete with 68 footnotes, the commissioner (the courageous Guy Giorno) told council to go pound salt. He found that Van Leeuwen was perfectly within his rights to express his opinions, which belonged in the clash of political debates generally. The expression of opinion did not interfere with or attempt to influence the actual lockdown measures in his region and he at no time urged anyone to break the law. Council did not like the man’s political views and tried to use the OIC to marginalize him and to shut him up. It did not work.

The rush to complain to the OIC can almost be reflexive for some. I have witnessed this personally. As some readers may know, I have criticized our Medical Officer of Health for both a massive COVID bonus and for a management style which has led to the exodus of many talented female managers. When the chair of the public health board then defamed me for my efforts, Councillor Marion Koepke joined the tar and feather brigade by suggesting on the record that the integrity commissioners be brought in to investigate me. For the love of God, I thought at the time - investigate what precisely? Whether my criticisms of the MOH somehow contravened our Code of Conduct?

Fortunately, wiser heads prevailed and this nonsense went nowhere. But it disconcerts to know that some councillors believe the OIC can be leveraged to quash political debates they would rather not have. And we wonder why our council debates are so few and so anemic. If you are afraid of the spectacle of an OIC investigation, you will be afraid of your own shadow and you will self censor yourself continuously. Who needs the aggravation?

Some Modest Recommendations

If we cannot rid ourselves of this bureaucratic intrusion into democracy, we can at least moderate some of these evils. To that end:

• Every Code of Conduct should expressly provide that nothing within that Code should be construed as limiting in any way our Charter rights to freedom of expression.
• No councillor should be able to complain to the OIC about another councillor without a majority vote of council. This will eliminate much petty politicking and abuse of that office.
• Ban the practice whereby commissioners hold hearings and issue rulings on matters which they have previously investigated and attempted to mediate. No one person should be investigating officer, judge and executioner.
• The province should have complete say on what commissioner works with what municipality. Decouple the commissioner’s retainer from council.

Until then, I only half facetiously urge every municipality to retain Guy Giorno as their integrity commissioner. He gets it.

John Tamming is an Owen Sound City Councillor.  Principles Integrity is a Toronto-based partnership that has been appointed as integrity commissioner in Owen Sound, Grey County and most municipalities in Grey and Bruce, and as integrity commissioner and sometimes lobbyist registrar and closed  meeting investigator in over 40 Ontario municipalities and other public bodies, including Region of Peel and City of Hamilton.

An earlier version of this published as "Reflections on the Office of the Integrity Commissioner"

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