July 30, 2014

Should mayor vote on report about his conduct?

As published in The Erin Advocate

Was it proper for Mayor Lou Maieron to debate and vote on a report that recommended his pay be suspended for violating council’s Code of Ethics? He himself is not sure, and it appears no one but a judge can provide a definite answer.

Maieron had already defended himself during the Integrity Commissioner’s private investigation. He was determined to participate at the July 22 meeting, since it was his primary opportunity to give his side publicly.

Chief Administrative Officer Kathryn Ironmonger said councillors must determine for themselves if they have a conflict of interest and whether it is appropriate to speak. Staff cannot provide that opinion, and neither can other councillors or even the Ministry of Municipal Affairs. Only a judge can make a ruling, in the event of an official complaint.

The mayor’s conduct was the subject of a previous Code of Ethics presentation by an Integrity Commissioner in December. Referring to that meeting, he said, “I was permitted to speak to it, and question him on his report.”

Ironmonger responded, “There is a slight clarification. You chose to speak to your previous Integrity Commissioner’s report. Whether that was correct or not correct is not up to the council to determine.”

In the earlier case, he voted against a one-month pay suspension for himself, and was never legally challenged over it. At that time, Maieron said he had consulted his lawyer and was confident that he had the right under the Municipal Conflict of Interest Act to speak in a debate that concerned his pay. Ironmonger said she believes that provision applies to remuneration issues for the whole council.

Asked later if he was sure it was proper to speak on the current report, he said, “There’s nothing in the Municipal Act that tells you. I really don’t know.”

When the mayor was ready to proceed at the meeting, Ironmonger offered an additional caution: “To make sure you govern yourself accordingly, if an individual, under the Act, determines that they have a pecuniary interest on something, they are not supposed to try to influence the decision of council. You need to satisfy yourself that you are not influencing council by participating.”

Maieron responded, “Unless our Integrity Commissioner wants to provide some insight, I certainly don’t want to do anything further that could be considered a conflict of interest.” He requested the report be deferred to a later date so he could get legal advice. In a recorded vote of 4-1, council refused.

Commenting on his situation at the meeting, Maieron said, “I don’t have a pecuniary interest until such time as council decides afterwards, and the integrity commissioner is nodding his head, until you decide whether to impose his recommendation or not,” said Maieron. “After it is imposed, my recourse would be not to council, but to a judge under judicial review.”

The mayor disputed all of the commissioner’s rulings, then voted against receiving the report and imposing a pay suspension on himself. In a recorded vote of 3-2, the motion was defeated. Councillor Josie Wintersinger, who had proposed the motion, changed her mind and voted against it, along with Maieron and Councillor John Brennan.

Technically, the mayor did not cast the deciding vote. If a member is at the table but abstains from voting, they are counted as a Nay vote, which is how the mayor voted anyhow. If he had left the table and the vote was tied 2-2, the motion also would have been automatically lost.

Councillor Deb Callaghan, whose complaints led to the investigation, did not speak to the report. She said later it is inappropriate for any councillor to question the rulings of the appointed investigator, and she would have accepted the report no matter what it said.

She said it was proper for her to vote on the penalty, since that decision is assigned to council, and she had no pecuniary interest in the outcome of the vote.