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Focus: Lawyers grabbing piece of integrity commissioner action

Lawyers are grabbing a piece of the action as municipalities across the province embrace the concept of having an integrity commissioner.

Focus: Lawyers grabbing piece of integrity commissioner action
‘There’s such an enormous variety of issues that come up and you’re always creating new law and new approaches, which is a great feeling,’ says Robert Swayze.
When Toronto appointed David Mullan to the job in 2004, he became the first municipal integrity commissioner in Canada. The country’s largest city remains the only municipality legally mandated to appoint one but since then, a further 28 Ontario cities have entered the field voluntarily.

A series of high-profile conflict cases in Mississauga, Ont., and Toronto over the past couple of years have raised the profile of the position, and while integrity commissioners don’t have to be lawyers, some municipal practitioners are carving out a niche in the area.

After 40 years in municipal law, Robert Swayze landed his first integrity commissioner job in Oakville, Ont., in 2008. Five years later, he has added the municipalities of Mississauga, Brantford, Guelph, Port Hope, and Ottawa-area Carleton Place to a client list that now accounts for the majority of his law practice.
He says the novelty of the position excites him.

“It’s an evolving field, changing all the time. There’s such an enormous variety of issues that come up and you’re always creating new law and new approaches, which is a great feeling,” says Swayze.

Some of his recent mandates highlight the range of issues: One involved a councillor accused of giving preferential treatment to a real estate agent in her monthly newsletter while another concerned a deputy mayor accused by the mayor of sending inappropriate and unprofessional e-mails that were offensive about town staff to fellow councillors and members of the public.

The findings cleared the councillor of breaching the code of conduct but advised her to stop endorsing businesses in her newsletter. In the other case, the findings recommended a seven-day pay suspension that would continue until the deputy mayor ended his offensive e-mail habit.

One problem with a caseload that runs the gamut from the deadly serious to the apparently trivial is that it attracts questions over the cost and value of the integrity commissioner position. Last year, Guelph Coun. Bob Bell questioned whether “we should even have an integrity commissioner at all” after Swayze delivered a $10,000 bill for reviewing a newspaper article in which councillors criticized city staff.

“There is no value in what he did,” Bell told the Guelph Mercury after Swayze recommended no further action against councillors who had inadvertently breached the city’s code of conduct.

In Toronto, Mayor Rob Ford’s frequent run-ins with integrity commissioner Janet Leiper made her one of his chief enemies before recent scandals overtook them in the headlines. Leiper’s report into Ford’s use of city letterhead to solicit donations for his football charity, which she found was a breach of the city’s code of conduct, was at the heart of an almost-successful attempt to remove him from office. Ford has since called the work of Leiper’s office politically motivated and “a waste of taxpayers’ money.”

“It comes with the territory. It doesn’t bother me,” says Swayze of the public criticism.

“Obviously, if you say something negative about a councillor, they’re not going to be happy. But I think most have embraced it.”

Harold Elston joined the integrity commissioner game just over a year ago with his appointment by the Township of Georgian Bay. He says councillors there have welcomed an independent figure between them and complaining residents.

“One of problems for municipalities is people don’t always understand the role of council, so the process is an opportunity to clear the air, to meet with people, and understand their view. For councillors, it’s a chance for them to tell their side of the story, which I think they welcome,” says Elston, who’s looking to expand his integrity commissioner practice with other municipalities.

London, Ont., lawyer Greg Levine has tried to assuage fears in his community that the cost of hiring an integrity commissioner could easily spiral after opponents of the idea on the city’s council suggested it could cost as much as $500,000 per year.

A more reasonable estimate would be $20,000, according to Levine, who already performs the job for municipalities in Waterloo, Kitchener, West Lincoln, and Lambton Shores, Ont. His typical deal sees him charge a $2,000 retainer plus $150 per hour for reports and investigations. “That’s for a lawyer with 25 years of experience. Tell me in Toronto where you can get that. . . . It is possible to make it cost-effective,” says Levine.

Levine commends municipalities for creating codes of conduct to regulate the behaviour of councillors but sees the job as unfinished without the appointment of an integrity commissioner.

“It’s important to have a code of conduct in order to establish knowable standards. But in order to hold anyone accountable, you also have to have some way of enforcing it,” he says. “I don’t buy the idea that it’s not worth the cost. Even in bigger municipalities where they’re essentially on salary working two, three or more days a week, that’s a lot cheaper than hiring a fancy firm at $600 or $700 an hour.”

He says cities can wring even more value by introducing an advice function to the role that would allow councillors to approach the commissioner at the moment a potential conflict comes up rather than waiting for a complaint.

In Mississauga, Swayze gets calls all the time from councillors who want to know when or if they should recuse themselves, sometimes during meetings or just ahead of votes at council. He says sensitivity to conflicts is particularly high in the city after the 2011 judicial inquiry into the actions of Mayor Hazel McCallion.

“That was a major multimillion-dollar inquiry. If they had had an integrity commissioner, the mayor could have called and the whole thing might have been avoided,” says Swayze.

“I give them advice always in writing. If they’re contemplating some course of action where concern might arise over a conflict, they can call me or write me an e-mail, and I can give them advice in writing, which is then binding on me should a complaint come in later. That kind of function can help prevent a lot higher costs.”

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