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4. 2006 MUNICIPAL ELECTIONS -
COMPLIANCE AUDIT Committee
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That Council receive this report for
information.
Que le Conseil prenne
connaissance du présent rapport.
DOCUMENTATION
1.
Chief
Corporate Services Officer’s report dated 12 June 2006
(ACS2006-CRS-CCB-0043).
Report to/Rapport au :
Corporate Services and Economic Development Committee
Comité des services organisationnels
et du développement économique
and Council / et au Conseil
12 June 2006 / le 12 juin 2006
Submitted by/Soumis par : P. G. Pagé, City Clerk / Greffier municipal
Contact
Person/Personne ressource : P. G. Pagé, City Clerk / Greffier municipal
City Clerk’s Branch/Direction du greffe
(613) 580-2424 x22408,
pierre.pagé@ottawa.ca
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SUBJECT: |
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OBJET : |
Élections municipales 2006 – comitÉ de vÉrification de
conformitÉ |
REPORT RECOMMENDATION
That the Corporate Services and
Economic Development Committee recommend Council receive this report for information.
RECOMMANDATION DU
RAPPORT
Que le Comité des services organisationnels et
du développement économique recommande au Conseil de prendre connaissance du
présent rapport.
BACKGROUND
An elector who is entitled to vote in an election and believes on reasonable grounds that a candidate has contravened a provision of the Municipal Elections Act (the "Act") relating to election campaign finances may apply to the municipality for a compliance audit of the candidate’s election campaign finances under Section 81 of the Act. (An extract from the legislation is attached.) Such an application must be made within 90 days after the filing date for campaign expenses, or the candidate’s supplementary filing date, if any. The filing date for the 2006 municipal elections is Monday, April 2, 2007.
Section 81 permits a council to establish a committee, independent of council, to conduct the review and decision-making process for compliance audit requests. This provision was added to the legislation in 2002 in response to municipal requests for a mechanism that would allow a council to avoid the situation of in effect sitting in judgment of one of its own members if a compliance audit request is filed against a member.
The new authority was considered but not implemented in Ottawa for the 2003 municipal elections. One compliance audit request was filed after the election against a member of Council. The request was evaluated by Council and refused on the basis of being without merit.
In order for a council to establish a committee, it must do so before the municipal election is held. This matter is therefore being brought forward for Council consideration at the same time as other election administration matters are being presented for the 2006 municipal elections in order that a determination can be made on whether to remain without a committee, or to move to initiate the process to establish one.
DISCUSSION
The legislative provision authorizing the creation of a special purpose committee to review and make decisions on compliance audit requests is a provincial response to relatively isolated situations that have arisen at the municipal level. There was no willingness on the part of the province to re-establish a formal provincial role in arbitrating issues that may arise on municipal election campaign finances.
The benefit of a council making provision for a compliance audit review committee is that it separates the council from the potentially difficult task of having to make a decision in regard to the campaign affairs of a member or an unsuccessful opponent. A committee could be perceived as arms-length and essentially neutral, like a court.
As noted in 2003, the chief concern with respect to the appointment of such a committee is that it would then become, in accordance with the legislation, an independent review and possibly an investigative body, without scope for control by Council. Council is required to “pay all costs in relation to the operation and activities of the committee”. Members of a council and municipal employees are excluded from membership on the committee – it is to be a fully independent body.
The committee would exercise authority delegated to it by Council. There are two choices in this regard – to review and recommend to Council on whether a particular compliance audit request should be approved or refused; or, to give the committee all of Council’s authority including the ability to initiate legal action after a compliance audit is completed.
From a policy standpoint, the choice that has to be made is whether to distance Council from the compliance audit decision-making process, with attendant risks around cost and control, or, to retain control of the process recognizing that situations can arise where making a decision can be difficult because it may relate to another member of Council.
One additional factor to consider in this equation is the provision in Subsection 81(3.3) which authorizes an appeal to the Ontario Court of Justice of any decision made by a council or a committee in regard to the compliance audit process. This provision acts as a balancing tool by which interested parties may intervene at intermediate steps and obtain a judicial ruling on the process being followed. Staff view this as a significant adjustment to the pre-2003 system which left a council very much on its own with respect to the action it could or should take on a matter relating to a compliance audit.
A further area of consideration in making a decision is the City's experience to date with compliance audits. One request was filed after each of the 2000 and 2003 municipal elections. In both cases the requests related to an elected member. Council was able to make decisions on the requests in a deliberate and objective way. The exercise of this authority was not easy, but the process worked without public criticism that Council failed to act in a responsible fashion.
Having considered aspects relating to control of process, cost uncertainty, the saving feature of the right of appeal, and the limited number of requests to date, staff has concluded there is not sufficient justification to recommend that Council proceed to establish a compliance audit committee for the 2006 elections.
Should Council see merit in the contrary position, a further report would be drafted to suggest a framework for the establishment of a committee. This would speak to suggested committee size, composition, recruitment process, and budgetary considerations. The appointment of the committee and delegation of powers to it must occur before voting day, November 13, 2006.
CONSULTATION
No public consultation is required for this subject.
FINANCIAL IMPLICATIONS
There are no immediate costs associated with this initiative. If Council chooses to establish a committee, more detailed costing would be supplied in a follow-up report. The bulk of costs would arise in 2007.
SUPPORTING DOCUMENTATION
Annex 1 - Section 81 of the Municipal Elections Act, 1996
DISPOSITION
ANNEX 1
Municipal Elections Act, 1996
S.O. 1996, CHAPTER 32
Extract – Section 81
Compliance
audit
81. (1) An
elector who is entitled to vote in an election and believes on reasonable
grounds that a candidate has contravened a provision of this Act relating to
election campaign finances may apply for a compliance audit of the candidate's
election campaign finances. 1996, c. 32, Sched., s. 81 (1).
Requirements
(2) The
application shall be made to the clerk of the municipality or the secretary of
the local board for which the candidate was nominated for office, within 90
days after the later of the filing date, the candidate's last supplementary
filing date, if any, or the end of the candidate's extension for filing granted
under subsection 80 (6), if any; it shall be in writing and shall set out the
reasons for the elector's belief. 1996, c. 32, Sched., s. 81 (2);
2002, c. 17, Sched. D, s. 32 (1).
Decision
(3) Within
30 days after receiving the application, the council or local board, as the
case may be, shall consider the application and decide whether it should be
granted or rejected. 1996, c. 32, Sched., s. 81 (3).
Delegation
to committee
(3.1) A
council or local board may, before voting day in an election, establish a
committee and delegate its powers and functions under subsection (3) alone or
under subsections (3), (4), (7), (10) and (11) with respect to applications
received under subsection (2) and the council or local board, as the case may
be, shall pay all costs in relation to the operation and activities of the
committee. 2002, c. 17, Sched. D, s. 32 (2).
Powers and
limitations
(3.2) A
committee established under subsection (3.1),
(a) shall exercise the powers and duties delegated
to it under that subsection with respect to all applications received under
subsection (2) in relation to the election for which it is established; and
(b) shall not include employees or officers of the
municipality or local board, as the case may be, or members of the council or
local board, as the case may be. 2002, c. 17, Sched. D,
s. 32 (2).
Appeal
(3.3) The
decision of the council or local board under subsection (3) and of a committee
under subsection (3) pursuant to a delegation under subsection (3.1) may be
appealed to the Ontario Court of Justice within 15 days after the decision is
made and the court may make any decision the council, local board or committee
could have made. 2002, c. 17, Sched. D, s. 32 (2).
Appointment
of auditor
(4) If
it is decided to grant the application under subsection (3), the appropriate
council or local board shall, by resolution, appoint an auditor to conduct a
compliance audit of the candidate's election campaign finances. 2002,
c. 17, Sched. D, s. 32 (3).
Licensed
auditor
(5) Only
an auditor who is licensed under the Public Accountancy Act may be
appointed under subsection (4). 1996, c. 32, Sched., s. 81 (5).
Duty of
auditor
(6) An
auditor appointed under subsection (4) shall promptly conduct an audit of the
candidate's election campaign finances to determine whether he or she has
complied with the provisions of this Act relating to election campaign finances
and prepare a report outlining any apparent contravention by the candidate.
1996, c. 32, Sched., s. 81 (6).
Who receives
report
(7) The
auditor shall submit the report to,
(a) the candidate;
(b) the council or local board;
(c) the clerk with whom the candidate filed his or
her nomination; and
(d) the applicant. 1996, c. 32, Sched.,
s. 81 (7).
Powers of
auditor
(8) For
the purpose of the audit, the auditor,
(a) is entitled to have access, at all reasonable
hours, to all relevant books, papers, documents or things of the candidate and
of the municipality or local board; and
(b) has the powers of a commission under Part II of
the Public Inquiries Act, which Part applies to the audit as if it were
an inquiry under that Act. 1996, c. 32, Sched., s. 81 (8).
Costs
(9) The
municipality or local board shall pay the auditor's costs of performing the
audit. 1996, c. 32, Sched., s. 81 (9).
Consideration
of report, legal proceeding
(10) The
council or local board shall consider the report within 30 days after receiving
it and may commence a legal proceeding against the candidate for any apparent
contravention of a provision of this Act relating to election campaign
finances. 1996, c. 32, Sched., s. 81 (10).
Recovery
(11) If
the report indicates that there was no apparent contravention and the council
or local board finds that there were no reasonable grounds for the application,
the council or local board is entitled to recover the auditor's costs from the
applicant. 1996, c. 32, Sched., s. 81 (11).
Immunity
(12) No
action or other proceeding for damages shall be instituted against an auditor
appointed under this section for any act done in good faith in the execution or
intended execution of the audit or for any alleged neglect or default in its
execution in good faith. 1996, c. 32, Sched., s. 81 (12).