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Municipal integrity commissioners and workplace investigators: Who does what when council members are accused of harassment?

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Bill 68, the Modernizing Ontario’s Municipal Legislation Act, 2017, received Royal Assent on May 30, 2017. One of the biggest changes introduced by the Bill is the requirement that all municipalities in Ontario have a Code of Conduct and either appoint an Integrity Commissioner, or make arrangements for the Commissioner of another municipality to fulfill the relevant duties.  As municipalities go about filling these positions, something to consider is what role the Integrity Commissioner will play in investigating workplace harassment allegations against municipal council members.

Specific challenges will always exist when considering harassment complaints against council members, who occupy a unique position within a municipality. They are not employees, nor are they the “boss” of staff, since an individual council member cannot direct or compel staff members to do anything. However, there is no doubt that municipal employees tend to see council members as being in a position of authority. These investigations are further complicated by the need for both confidentiality and transparency; while confidentiality is paramount in most workplace harassment investigations, there is a need for transparency when reviewing the conduct of elected officials.

The recent investigation in the City of Sarnia demonstrates how an Integrity Commissioner and a workplace investigator can work together on a complex investigation.

Council for the City of Sarnia chose to receive reports from both the Integrity Commissioner and an external investigator when city employees made complaints against Mayor Mike Bradley. The Integrity Commissioner’s investigation focused on the contraventions of the Code of Conduct raised in the complaints, including that Mayor Bradley interfered with staff duties and inappropriately assumed authority over staff. The workplace investigation was conducted in accordance with the city’s harassment policy and focused on four complaints of workplace harassment.

The June 2016 Integrity Commissioner’s report[1]  found that Mayor Bradley interfered with staff duties by undertaking tasks that were the exclusive responsibility of the City Manager, and acted in an intimidating and threatening manner towards staff. In doing so, he contravened the Code of Conduct. The Integrity Commissioner recommended that Mayor Bradley’s salary be suspended for 90 days, which is the harshest penalty outlined in s. 223.4(5) of the Municipal Act, upon a finding that the Code of Conduct has been breached.

The October 2016 workplace investigation report[2] was prepared by a workplace investigator, who was retained by Sarnia’s external legal counsel. All four complainants were identified in the report, but witnesses were kept anonymous. The investigator reviewed a variety of allegations made against Mayor Bradley, including that he verbally abused city staff, criticized them in public, and was rude and intimidating. The investigator found that the mayor engaged in a course of vexatious conduct that amounted to harassment against all four complainants. He also engaged in reprisal contrary to the city’s Workplace Harassment Policy, and made negative remarks about the complainants that amounted to character assassination.

In response to these findings, city council voted to separate Mayor Bradley from staff by relocating his office and approved governance training, coaching on effective management techniques, and anger management training for both the mayor and council.

Considerations for municipal workplace harassment investigations

Any complaint against a municipal council member is going to attract public attention, and dealing with the complaint quickly and thoroughly is of the utmost importance. Sarnia found a way for the Integrity Commissioner to work with a workplace investigator in a complex investigation where both the harassment policy and the code of conduct came into play.  In these situations, there are some things municipalities should turn their mind to, to ensure that the investigation of the complaint is properly conducted.

First and foremost, municipalities should have a clear procedure in place for handling harassment complaints against council members. In many cases codes of conduct do not refer to the relationship between council and staff, and harassment policies are often worded to apply only to municipal employees, rather than elected officials.  This can make the policies unworkable when the respondent is a council member, in terms of the stipulated investigation process and possible disciplinary measures outlined.  Together, the code of conduct and the workplace harassment policy should form a cohesive and workable process for investigating complaints against councillors. Any confusion about how the complaint will be investigated can cause a lengthy delay, leading to difficulty in collecting evidence later on and unnecessary stress for all parties involved.

When a complaint is received, consideration should be given to how the complaint is framed. Is the complainant concerned that the councillor violated their ethical duties as a council member, or that they have created a poisoned/hazardous work environment? Or both? As much as possible, the process used should get to the heart of the complainant’s concerns.

A complaint that specifically refers to violations of the Code of Conduct is within the purview of the Integrity Commissioner. A complaint made under the municipality’s Workplace Harassment Policy could be reviewed by the Integrity Commissioner, or a workplace investigator. If the complaint raises both Code of Conduct matters and allegations of harassment, it might make sense to consider the issues separately, as was done in the Sarnia investigations. However, in some cases the issues are so entwined that having two distinct investigations could result in unnecessary duplication of effort and possible contradictory findings.

Finally, consideration should be given to the importance of confidentiality. By virtue of s. 223.6(3) of the Municipal Act, Integrity Commissioner reports are always made public. These reports can be anonymized, but depending on the substance of the allegations there may be some concern over the details being made public. While the reports of workplace investigators can be shared publicly in some circumstances, there is more opportunity to keep the details of a workplace harassment investigation confidential.

Municipalities should consider all the circumstances of a complaint when deciding how best to investigate allegations of harassment against a council member. The person investigating the allegations must have the expertise to conduct a timely and through investigation, and it is essential that the investigation focuses not only on potential breaches of the Code of Conduct, but also fulfills the municipality’s obligations under the Occupational Health and Safety Act to investigate allegations of harassment. In some cases these objectives can be fulfilled by one individual, and sometimes it will take a workplace investigator and an Integrity Commissioner working together to ensure the best outcome.

Michelle Bird

About the Author: Michelle Bird conducts workplace investigations into allegations of harassment, bullying, poisoned work environments, and other problematic workplace behaviour. Michelle also provides workplace investigation and human rights training to staff at all levels.

[1] http://www.sarnia.ca/documents.asp?DocumentID=1301

[2] http://www.sarnia.ca/documents.asp?DocumentID=1279