CANMORE – A potential change to a bylaw governing Canmore council’s code of conduct could see new methods for the way council receives complaints from an investigation, the way mediation may occur and when an investigator’s report is provided to council.
At a March 19 committee of the whole meeting, the bulk of the discussion focused on when and how much a respondent should be able to address allegations made in an independent investigator’s report. Town staff will return with information that will potentially have a preliminary report go to a respondent and complainant before heading to council for a possible decision or sanctions.
“If the final report contains information that the respondent has never seen or heard before or had an opportunity to respond to, then they should have an opportunity to respond to that information before the report is final," said Coun. Tanya Foubert.
"It’s a procedural fairness issue in that if there are things being said that happened and the respondent doesn’t get to respond to those specifics in any way whatsoever then it becomes a little challenging.”
Coun. Wade Graham said he expects any investigation be thorough and “include rebuttal and cross-examinations."
Mayor Sean Krausert noted it was important to get feedback from all involved on possible allegations due to potential reputational impact for a respondent and investigator and to get all facts correct.
“It’s the respondents whose reputation is on the line and to have a report that may contain some errors may let the genie out of the bottle that could be explained to council, but the damage is already done,” he said.
Adam Driedzic, the Town of Canmore's solicitor, said it was important for council to establish firm guidelines and for a process to have an end goal rather than a back-and-forth drawn-out process.
“At some point, that process needs to end and switch to council deliberating and being the decision-maker,” he said.
If a complaint has been made by a member of the public, council preferred to receive a copy only after it had been substantiated by its independent investigator.
Graham said he believed it could be “weaponized” against council, while Coun. Joanna McCallum said having been through an unsubstantiated complaint last term would have added stress if all of council had been involved.
“Having a code of conduct complaint filed against you is stressful enough," she said. "I have had a frivolous code of conduct complaint filed against me in the last term and it sucked up five months of my life and it was quite stressful and unsubstantiated in the end, but if I had dealt with that and having all of my colleagues know about it at the same time, I think it would have made it even more stressful."
Town staff will return with more information on the level of detail to provide on public complaints, though Krausert noted if a complainant is a council member he’d prefer council to be aware.
If an investigator’s report is given to a public complainant, Driedzic noted it’s best to assume it will be public without a non-disclosure in place.
“If that complainant has rights that were adversely and directly affected by the councillor’s actions and there’s a finding the breach did in fact occur, then that duty of fairness owed to the complainant might require something more substantive like they receive a copy of the investigation report,” he said. “In that situation, you imagine they’re going to do something with it rather than use it for other actions or go public. They will use it to advance their own cause.
“Once it’s out, absent further agreement with the member of the public, it’s out.”
He said if a copy isn’t provided, a public complainant could file a Freedom of Information and Protection of Privacy Act request and go through that process.
Sally Caudill, the Town’s CAO, said it was important for council to be clear with its code of conduct policy, emphasizing it was impossible to predict every circumstance and that “a one size fits all approach does not work.”
She said not providing a public complainant anything can be a problem, but giving everything can also create a different problem.
Krausert said he had concerns about not providing anything to a public complainant, but potentially adding conditions to get a copy.
Driedzic said when a code of conduct is filed by one council member against another and an investigation is completed, the investigator will brief council in an initial closed meeting with report findings and recommendations.
Council will then meet a second time in camera to discuss the findings and recommendations, but not make a decision and have the respondent participate to ensure fairness. A third meeting will take place in a closed meeting to discuss possible sanctions, but if sanctions are required a public vote is needed without the respondent participating.
Barbara McNeil serves as council’s primary independent investigator, but Alberta-based consulting firm Sage Analytics was approved as its backup code of conduct investigator last October.
The Alberta Ombudsman office can review a complaint if a complainant or respondent feels they were treated unfairly, but they don’t specifically investigate a code of conduct, rather the way an investigation may have been handled.
The Ministry of Municipal Affairs has a guide that was developed with Alberta Municipalities to help both residents and council members during the process.
The Municipal Government Act requires each council to establish a code of conduct, which Canmore established in 2018. As part of provincial legislation, a council has to review and potentially update it at least once every four years.
A Town staff report noted Town of Canmore “is also fortunate to see very few complaints for breach of the code and even fewer that proceed to investigation.”
The existing code of conduct requires a complaint be made in writing and outlines “reasonable and probable grounds for the complaint.” Once an investigator receives a complaint, they can determine if it’s reasonable and whether a violation took place, if additional investigation is needed or if it’s dismissed.
If a complaint is substantiated, the council member who is the subject of a complaint has 14 days to respond to the findings. A successful complaint can lead to sanctions such as a public apology, letter of reprimand, reduced pay and removal from council-appointed roles.
The Town of Banff had multiple complaints filed against councillors in its last term, notably by Banff residents Jamie MacVicar and Barry Kelly against former mayor and now Canadian Senator Karen Sorensen. The complaint stemmed from her husband Carsten Sorensen’s company being involved in providing benefit packages to the Town of Banff since 2005, though the former mayor had publicly declared a conflict of interest.
An independent investigator and the RCMP cleared Sorensen, but it cost about $12,000 to complete the investigation into the complaint.
In 2021, former councillor Peter Poole also had a conflict of interest complaint filed against him because he owned the Juniper Hotel and was involved in the area redevelopment plan (ARP) discussions for the train station lands. The complaint had been brought forward by Adam Waterous of Liricon Capital, who is bringing forward the ARP and proposed gondola.
Town of Canmore staff will also research examples and processes from other municipalities when it comes to dispute resolution.
Council discussed wether or not a code of conduct should reference potential criminal investigations against a sitting council member, but Krausert cautioned drawing a conclusion before a conviction or acquittal in the courts.
Therese Rogers, the Town’s general manager of corporate services, noted the council remuneration committee is researching potential leaves for council, which may come back to council before the end of this term. Driedzic also said a leave could possibly be built into council’s procedural bylaw.
