Article from Cox & Palmer--Summer 2016
The “Wells Report” on Municipal Ethics Systems: Window Dressing or Institutional Fabric?
by Kevin Latimer, Q.C., Partner, Cox & Palmer
The Honourable Clyde K. Wells, Q.C., released his “Report to St. John’s City Council on Recommended Adjustments to The City’s Existing Ethical Conduct Legislation” (the “Report”) in September of last year. It marked the first phase in a two part study designed to advise St. John’s City Council on the adequacy of its existing ethical legislation.
The Report emphasizes an overarching obligation for all municipalities to not only have ethics systems that articulate what is expected but, more importantly, that also provide a means to promote and enforce those ethical standards. The Wells Report shows that if we want our municipal officials in Nova Scotia to be accountable, our ethics systems need to be potent.
The ultimate goal of the Wells Report was to provide guidance on how to best ensure that the personnel of the City of St. John’s meet high ethical standards. The Report reviewed academic writings on the subject, existing ethical legislation of the City of St. John’s, the Newfoundland government, other Newfoundland municipalities, and other provincial jurisdictions; and best practices in jurisdictions outside of Canada. It concluded with a list of recommendations.
The Report suggested that the primary purposes of an ethics system should be “gaining and retaining public confidence and trust” and “promoting integrity in the conduct of the affairs and operations of the [municipality]” (pg. 98). A prerequisite in the realization of these purposes (and, in turn, of an effective ethics system) is the adoption of a process for expressing and receiving ethical concerns or complaints. The Report also noted that ethics systems should have
objective procedures for investigating potential ethical failures, and some means of sanctioning such failures.
The Report highlighted that an ethics system should adopt a single code that contains basic provisions applicable to all municipal personnel and, where required, specific provisions applicable to only an identified group of personnel (i.e. members of Council, management, or employees). Mr. Wells found that the most appropriate form of an ethical code was a hybrid, containing both aspirational and prohibitive tenets.
It was also suggested that a single individual be appointed to oversee all matters involving the system, including implementation, operation, and any necessary amendments. This individual should be strictly independent and answerable directly to Council.
A fundamental recommendation in the Report is that ethical legislation contain specific provisions related to education and training, promotion, access to advice, complaint processes, and the investigation and disposal of complaints. Complaint processes should encourage complaints made in good faith and provide a simple and effective means of resolution. Within this, the investigation processes should provide for designation of responsibility to ensure the complaint is pursued diligently. It should also include fairness rules to be followed in any investigation, the preparation of an investigation report, and specific procedures dealing with the recommendation and imposition of potential sanctions.
The Report then offered a number of closing remarks, which explained the underlying themes of its recommendations. The Report emphasized that the mere development of an ethical code is not effective. Codes are not self-implementing. They require “an institutional fabric for developing the code, communicating it, interpreting it, training or education on the code, enforcing it and assessing it” (pg. 107). A truly effective ethics system involves more than an aspirational code setting out the standards a municipality expects. It requires the teeth to promote and enforce those standards. Education, advice, monitoring, investigating and sanctioning are all critical tools in this regard.
Mr. Wells concluded with his final overarching recommendation:
Unless Council is committed, after creating and enacting an ethics regime, to fully implementing it by providing reasonable education and training, promoting, monitoring, enforcing and periodically adjusting it to meet changing circumstances, little more than increasing the window dressing will be achieved by the efforts (pgs. 108-109).
The Report is significant and reveals a number of key issues relevant to municipalities in Nova Scotia moving forward. Perhaps most importantly, the report strongly suggests that municipalities should have specific procedures in place for handling ethics complaints, investigations, and resulting sanctions. Municipalities may not have a truly effective ethics system without such procedures.
The principles and recommendations set out in the Report are highly relevant for municipalities in Nova Scotia. Although most Nova Scotia municipalities have adopted the model Code of Conduct for Elected Municipal Officials created by the UNSM, very few have created policies or procedures for investigating and resolving complaints made under their Codes. One notable exception is the Municipality of the County of Kings, which recently implemented a comprehensive Policy for the Investigation and Adjudication of Complaints under the Code of Conduct for Elected Municipal Officials, which sets out a clear process for dealing with complaints, and thereby addresses the primary concerns expressed in the Report regarding investigation and enforcement. This is a good start.
Kevin Latimer, Q.C., is a partner in the Halifax office of Cox & Palmer, and counsel to UNSM. He practices in the areas of municipal and planning law, administrative law, and public law litigation.