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Judging itself: RMOW makes final touches to new code of conduct

Whistler council is coming to the end of a long process in generating a new code of conduct to govern elected official behaviour
RMOW council discussing code of conduct changes at the April 9 regular meeting.

Whistler's mayor and council has signed off on a new code of conduct.

After a lengthy discussion at the April 9 regular council meeting, Whistler councillors voted on the particulars of the new code of conduct with a suite of amendments that were the result of council feedback at the Feb. 6 committee of the whole meeting.

At the previous meeting, coordinator of special legal projects, Brooke Vagelatos, explained the goal of the new bylaw is to set out behavioural expectations for elected officials.

“It would establish both informal and formal resolution procedures, [and] it would rely on an independent third-party investigator to investigate any complaints, and to provide a report regarding the alleged breach as well as recommending proportional remedies where those expectations are not met,” she said at the Feb. 6 meeting.

Speaking again at the April 9 meeting, Vagelatos presented the previously-discussed code of conduct with a raft of 11 optional amendments addressing council feedback ranging from defining what counts as a breach of the code across personal and professional life; social media; informal resolutions; investigator reports and more—from which council pulled six optional amendments and voted to include them in the code, with a vote on one amendment failing in a 3-3 vote.

Municipalities in B.C. are required to update their codes of conduct as per provincial legislation that requires either updates to existing codes, the adoption of new codes, or in the case of not adopting a code—justification for why not. The Resort Municipality of Whistler (RMOW) went down the path of updating its existing code, which was from 2005, and needed work to be in line with provincial expectations.

During discussion about the options to change the code as presented (and recommended) by staff, Councillor Jessie Morden moved to incorporate a mechanism on the investigator report on alleged misconduct—which was a major point of discussion at the previous meeting where she, along with Coun. Jen Ford, spoke about the need to stop the automatic release of documentation of an investigation when no breach of the code was found.

“We all know that social media can be the judge and jury regardless of what a report would say,” she said.

Under the amendment, if a formal investigation into an alleged breach of the code is carried out, and the independent investigator finds there was no breach, a report on the investigation will not be released to the public unless it receives approval from the councillor exonerated by the report.

At the Feb. 6 meeting, Morden expressed fear that automatically releasing a report to the public on a false accusation would be damaging to the accused.

Coun. Ralph Forsyth delved into issues of money as discussed in the code, moving to include two changes relating to dollars.

The successful change he pushed for was to remove the reimbursement claim limit for councillors that sought legal advice during a formal complaint process. The change deletes a $10,000 cap, but leaves in guidelines that reimbursement can only be sought if a councillor didn’t breach the bylaw, wasn't previously reimbursed, and didn’t engage is dishonest conduct. The amount reimbursed is subject to council approval.

The unsuccessful motion resulted in a split council, and related to remuneration penalties in the event of a breach of the code.

“I don’t think we should be in the business of deciding how people get paid,” Forsyth said in explaining his desire to remove remuneration penalties entirely. 

Under the code as written and presented by staff, if a council member is found to have breached the bylaw, their pay is automatically reduced before any further remediation actions can be taken by council. Remuneration as a penalty is automatic, without council input.

Forsyth said he believes such a rule has the potential to become vindictive. “I don’t see how anything good can come from this,” he said.

Coun. Jen Ford spoke against Forsyth, saying while she generally agreed with his concerns, remuneration was one of the few areas where a code of conduct could have teeth.

“There’s all kinds of punitive parts to this that certainly affect how we work together,” said Ford. “This is one that has teeth, and has been seen as effective in other communities that implemented it a while ago.”

Ford also added the remuneration penalty could also be applied to those who make vexatious or frivolous complaints against fellow councillors, and that it worked to discourage both bad behaviour and bad faith complaints.

Forsyth, who acknowledged it was a firm stick, responded that he didn’t see how a councillor could move forward in their work after their pay had been deducted, and was not swayed.

Crompton expressed support for Ford’s position, commenting that the bylaw if carried through a formal investigation would already be dealing with a toxic situation.

In the final vote on the change, Forsyth, Morden, and Coun. Arthur De Jong voted to remove remuneration as a penalty for breaches of the code of conduct, while Crompton, Ford and Murl voted to keep it in. As it was a tie (Coun. Cathy Jewett was not present), the motion failed, and a reduction in remuneration will remain as an automatic penalty for breaches of the code of conduct that go through the formal resolution process.

Forsyth commented later that as remuneration was the change he felt strongest about, he would likely vote against the new code of conduct when it comes before council at a later date.

In other changes, Murl moved to simplify definitions within the code that govern how councillors interact with RMOW staff, removing text that explicitly required all formal queries and communication go through the Chief Administrative Officer “unless the communication is minor and for the purpose of seeking administrative clarity,” and opted to replace it with text that simply encouraged councillors to respect the role and responsibilities of each staff member.

A second amendment moved by Murl was to add verbiage that allowed the investigator looking into the alleged breach to refer it to the CAO or mayor if they determined it could potentially be resolved informally.

Crompton moved to change sections of the code that specified jurisdiction over complaints, while Coun. Ralph Forsyth opted to include changes on harassment and discrimination that simplified the text and put “a finer point” on the code.

In total, of the 11 potential changes offered by staff as a result of council feedback, six were adopted, and one failed. The remaining four items were not picked up. All 11 can be read on the RMOW website.

Speaking to the final product, which council voted to send back to staff, Crompton said it is a robust document and much needed, adding he doesn't believe it is a responsibility municipalities should have in-house.

“I will say, local governments didn’t ask to have the responsibility to judge ourselves,” he said.

“I personally have spent a tremendous amount of time over the past 12 years advocating for the province of British Columbia to establish a British Columbia municipal ethics commissioner."

Other provinces have moved in that direction, he noted.

“I think an independent group in the form of a B.C. municipal ethics commissioner is the right way to go, and I hope they do it, and do it soon, so that this is not something that councils need to manage themselves.”

The amended code of conduct will come back to RMOW council with the changes for first, second and third reading at a future meeting.