Casual Legal: Respectful communications with staff
By Maddison Croden
Reynolds Mirth Richards Farmer LLP
Alberta Municipalities Casual Legal Service Provider
Municipal councillors in Alberta are subject to a number of rules and responsibilities, including adopting and complying with a Code of Conduct which governs the behaviour of members of council. A Code of Conduct may include provisions which mandate that councillors engage respectfully with officers and employees of the municipality.
When a provision of the Code of Conduct is breached, s. 5 of the Code of Conduct for Elected Officials Regulation, Alta Reg 200/2017 governs what penalties may be levied.
So, when does spirited disagreement between councillors and staff cross the line into a violation of such a provision? Where a violation is found, what is the appropriate penalty for a member of council?
These issues were recently considered by the Ontario Superior Court of Justice in Villeneuve v North Stormont (Township), 2022 ONSC 6551. In this case, the CAO of North Stormont filed a complaint against a member of council, alleging the member had engaged in recurring disrespectful conduct towards her. The first instance identified by the CAO occurred at a council meeting, where the member was found to have publicly berated the CAO over the failure to deliver quarterly financial statements, insinuating this was done with the intention of hiding information. The second instance occurred in an email exchange, where the member wrote to the CAO it was “irresponsible and completely unacceptable” that council had not been made aware the Township’s Fire Prevention Officer had resigned.
An internal investigation was launched by the Integrity Commissioner in response to the CAO’s complaint. The Integrity Commissioner concluded that both instances were “inappropriate and harassing in nature”, and in violation of the Code of Conduct. The Integrity Commissioner recommended a 45-day suspension from remuneration as well as a requirement that the councillor’s emails to the CAO flow through the mayor for a period of nine months. Council adopted these recommendations with some variation by imposing the following two penalties:
- the councillor’s pay be suspended for 45 days
- for a period of 14.5 months all emails from the councillor to the CAO or any other member of staff had to be passed through the mayor.
The councillor sought judicial review of the Integrity Commissioner’s decision at the Superior Court of Justice. The Court agreed with the Integrity Commissioner that the two instances detailed by the CAO constituted a breach of the Code of Conduct, specifically the requirement that councillors not intimidate, threaten, coerce, command, or influence any staff with the intent of interfering with staff duties. The exchanges were seen as inappropriate, abusive, and an attempt to compel the CAO to provide disclosure to council the member deemed to be appropriate.
With respect to the penalty imposed, the Court considered s. 223.4(5) of Ontario’s Municipal Act which provides a municipality may impose a reprimand, or suspension of pay for a councillor for a period of 90 days. In addition, council may require remedial actions to respond to the underlying complaint or to provide redress for a complaint. The Court found the requirement that all of the member’s communications with staff flow through the mayor for 14.5 months to be unreasonable. The member’s problematic email exchange related only to the CAO, and not other members of staff. Therefore, the penalty was overly broad and not connected to the conduct under consideration by township council on this occasion. The Court found this penalty to be unreasonable and punitive, and set it aside. The Court noted, however, the Integrity Commissioner’s recommendation that communications from the councillor to the CAO flow through the mayor for a period of nine months was a reasonable response to the problem of disrespectful email communication.
The takeaways from this decision are two-fold. First, councillors should be aware of the tone and language they use with municipal staff. While there is bound to be healthy and necessary disagreement in the management of municipal affairs, language which becomes abusive, inappropriate, or harassing in nature will generally constitute a breach of the Code of Conduct for councillors. Second, when crafting a penalty in response to a breach of the Code of Conduct, council should be careful to create a penalty which is responsive to the underlying conduct and not excessively punitive. Overly broad or disproportionately punitive measures may be struck down by the Court as being an unreasonable penalty.
To access Alberta Municipalities' Casual Legal Helpline, members can call toll-free to 1-800-661-7673 or send an casuallegal [at] abmunis.ca (email) to reach the municipal legal experts at Reynolds Mirth Richards and Farmer LLP. For more information on the Casual Legal Service, please call 310-MUNI (6864) or send an riskcontrol [at] abmunis.ca (email) to speak to Alberta Municipalities Risk Management staff. Any Regular or Associate member of Alberta Municipalities can access the Casual Legal Service.
DISCLAIMER: This article is meant to provide information only and is not intended to provide legal advice. You should seek the advice of legal counsel to address your specific set of circumstances. Although every effort has been made to provide current and accurate information, changes to the law may cause the information in this article to be outdated.
