Saskatchewan legislation requires municipal councils to adopt a code of ethics. If a municipal council has not adopted its own code of ethics then, by default, the prescribed model governs the members.
The prescribed model sets out the basic standards and values for all members of municipal councils in Saskatchewan to follow, such as:
- Transparency and accountability;
- Leadership and public interest; and
Members of council must comply with the standards and values set out in the code of ethics when fulfilling their obligations, duties and responsibility as an elected official, and in their interactions with each other, the employees of the municipality, and the public.
In general, the consequences of breaching the code of ethics can vary widely, particularly if a council has not adopted their own code of ethics. This is because neither the prescribed model nor the municipal legislation provide a process for dealing with contraventions of the code. Consequently, a municipality’s chosen process is governed only by the common law principle of procedural fairness.
Procedural fairness is a common law principle that applies to all administrative decision-makers who make decisions affecting the interests of individuals. Assessing what degree of procedural fairness decision-makers owe to individuals is a highly context-specific exercise.
There are general procedural elements that can be applied to most complaints respecting contraventions of the code, such as the right to know what the accusations are, the right to make representations and have those representations heard, and the right to know the reasons for the decision: Maharaj v Rosetown (Town), 2020 SKQB 254 at para 55. The underlying notion is that council should make administrative decisions using a fair and open procedure, appropriate to the decision at hand and its statutory, institutional and social context, with an opportunity for those affected to have their views and evidence heard and considered.
If council decides that there has been a breach of the code and provided reasons for that decision, the next step is to determine what the appropriate remedy would be. This assessment depends on the nature and severity of the breach. For example, a failure to disclose conflict of interest for financial gain would be a serious breach that may require removal from council. In contrast, for other less severe breaches an appropriate remedy may be an order to issue a formal apology or requirement to attend training.
To assist municipal councils in creating their own procedures, the Ministry of Government Relations has published a handbook for municipalities that recommends the incorporation of the following procedural steps into the council’s complaint procedure:
- Receive and acknowledge the complaint;
- Notify the affected council member of the complaint and council;
- Try to resolve the complaint informally;
- Investigate the complaint;
- Give all parties an opportunity to comment on preliminary findings;
- Decide whether there has been a breach of the code and what the appropriate remedy is; and
- Give reasons for the decision.
When dealing with a code of ethics complaint, it is important to ensure that the process followed is procedurally fair for both the councillor who is the subject of the complaint and the complainant.
The MLT Aikins municipal lawyers that have assisted municipalities with a number of code of ethics matters, including establishing and reviewing complaint procedures and acting as legal counsel for municipal council when dealing with complaints against members of council. For more information, please do not hesitate to contact a member of our team.