Integrity Matters: With Integrity Commissioner George Rust-D 'Eye

In this edition of Integrity Matters, we caught up with  Integrity Commissioner, George Rust-D'Eye:

1. Since you have been Hamilton’s Integrity Commissioner, how many complaints have you received? Can you please breakdown the number of complaints you received per year? In other words, of the total complaints received, how many were received in 2017, 2016…etc.

Not to duck the question, but it depends partly on the way that you define a “complaint”.
Since I operate entirely on the basis of legislation, resort must first be to the legislation itself, which in this case is both Provincial statute and Municipal by-law:

Section 223.4 of the Municipal Act,2001 authorizes an integrity commissioner (whom I will refer to“ IC”), to conduct an inquiry in respect of a request made by council, a member of council or a
member of the public about whether a member of council…has contravened the code of conduct applicable to a member…”

Section 1(c) of City By-law No. 16-288, “To establish and Govern the Office of Integrity Commissioner and Provide for the Resolution of Allegations of Contravention of the Code of Conduct [BY-LAW NO. 16-290], defines “Complaint” "to [include] a request by City Council, a Member of Council, a City employee, a City resident, or a person who has business, institutional or other premises in that the City, that the Integrity Commissioner conduct an inquiry, or that other appropriate action be taken, with respect to conduct or an event or series of events alleged to involve contravention by one or more Members of Council of the Code of Conduct, or of any other procedures, rules or policies governing the ethical behaviour of Members of Council;”

Thus, any complaint, request, statement of concern, allegation, or expression of desire for an inquiry or that some other form of “appropriate action” be taken, so long as there is an “allegation of contravention” of not necessarily the Code of Conduct, but alternatively of some other City procedure, rule or policy. The communication is often in very vague form, since not every person who contacts me about the conduct of a Councillor, knows anything about the provisions of the Code of Conduct, nor, in my opinion do they need to, in order for me to attempt to discern whether an “allegation” is really a statement of what the Member said or did, or appears to have said or done, at any time, whether or not in the course of Council or committee debate or not, was within the control of a body or its chair, may be dealt with through the Procedure By-law or properly may be the subject of other legislation, or what provision of the Code of Conduct, or the principles or requirements of its sections, are alleged to have been infringed.

It is my immediate responsibility as Integrity Commissioner, to do everything possible to assist the person calling, (for convenience only, I will refer to as the “Complainant”, or “C”), to understand the Code of Conduct, to determine whether or not it appears that the facts alleged may involve a possible contravention of the Code of Conduct, or to find some other appropriate way of understanding and addressing the concern, and resolving the issue “complained of”, in a totally independent, impartial, effective and, most of all fair and just, manner possible, properly taking into consideration the interests of the “parties” to the “complaint”, the objectives of the legislation, and, most of all, the public interest in good and proper municipal government.

My first one-year term as Integrity Commissioner commenced on May 1, 2015.  I have a number of responsibilities as Integrity Commissioner in addition to responding to “complaints”. Section 8 of By-law No. 16-288 establishes my role as “to help ensure that Members [of] Council perform their functions in accordance with the Code of Conduct, and other applicable procedures, rules and policies governing ethical behaviour”. My responsibilities also include the preparation of written documentation for Members, and the public, relating to the ethical obligations of Councillors, and their understanding of my role, to provide presentations and advice to the Council and its Members concerning those obligations. To provide advice to Members of Council with respect to such matters, and to deliver an annual report to the Council containing a summary of my activities during the calendar year. [I have already provided you with the dates upon which my Annual Reports to date have been received]. I believe that I have fulfilled these duties.

I have not recorded every communication which I have received in my capacity as Integrity Commissioner to the City. I would estimate that it averages (not taking into account communications with Members of City Council, the Clerk, and other City staff and citizen “witnesses), 4 or 5 per week, but it rises and falls. If between the C and I, I can discern an allegation of contravention, or can do so later, with further information, sought from the C at the time, or by seeking and receiving from the C or others, or later, by resort to other sources of information, possible grounds for such allegation, and a matter appropriate for my inquiry, I will consider the terms of reference for the inquiry, and notify the parties accordingly. 

In my first Periodic Report to Council, in September, 2015, I reported on three queries or complaints that I had received and how I had handled them. Neither the two which had raised issues with respect to elections, nor the third, which dealt with support by a Member of one or more decisions by the Council, were matters within my jurisdiction. 

In my second Periodic Report to the Council, March, 2016, I made specific reference to eleven specific matters which I had dealt with, in addition to the large number of contacts which I had received and resolved, or else advised that it was not a matter within my jurisdiction, would best be handled through another specified means, or that I was not in a position,for other reasons to deal with the matter.

In my third Periodic Report to Council, dated February 1st of this year, I summarized my activity as Integrity Commissioner since the date of my previous Periodic report, which I had now referred to by their reference numbers, including addressing matters numbered as Inquiry #2012-02, and 2016-01, 2016-02, and 2016-03, and setting out general principles which I had adopted, or conclusions or advice which I had given or understood relating to the application of the Code of Conduct. During the period March 14, 2016 to February 1, 2017, I addressed 43 specific requests for advice by Members of Council or others relating to the propriety of conduct of Members, and actual or proposed complaints alleging contravention of the Code of Conduct.

So far this year, 2017, I have opened seven “Complaint” files, all of which have been or soon will be, resolved or appropriately addressed, and none of which has necessitated an inquiry. I anticipate delivering my fourth Periodic Report to the Council at the beginning of 2018.

3. With reference to the total number of complaints referenced in question 1 above, can you provide us with a summary of the outcomes (ie: how many were substantiated, how many were un substantiated, how many were deemed trivial/vexatious , or any other category of outcome you would
classify outcomes into. Note- we are not asking for detailed information pertaining to the matters- just aggregate data.

Once again, I do not keep that type of statistic with respect to every communication received. Many do not lead to report or action on my part because I can resolve the issue (if not soothe the Complainant's feelings), directly, or I do not believe that I am in a position to deal with the matter for various reasons, such as vagueness or failure by the Complainant to set out particulars of the facts alleged, or to at least generally convey the nature of the complaint’s concern, or involve disagreement with decision-making by the Council,or its committees or local boards, or with participation by the Member in accordance with the responsibilities of office, and I do not wish to interfere with that process.

I consider very few of the communications, if any, to be “trivial or vexatious”. I believe that most of those who contact me have a genuine belief that the Councillor in question had “done something improper”, and is looking for someone who will listen to their complaint about it independently of the Council itself, and who is fair and impartial, and in a position to do something about it, whether formally or informally. I regard it as my responsibility, in accordance with the Municipal Act, Council’s by-laws, and other applicable law, to sort out the facts alleged, seek further information which supports or may negate the likelihood of contravention of the Code, and where appropriate deal with the matter, conduct an inquiry if appropriate, and report to the Council the results of my dealing with the matter.

4. Can you summarize what services/activities you have provided on behalf of the citizens of Hamilton, over and above investigation assessment/handling?

In addition to my addressing complaints, I have also provided services to the City from time to time through serving as its Lobbyist Registrar; the conduct of investigations; the provision of legal advice, (as “outside” counsel, (the City receives its legal advice generally through its City Solicitor); drafting of the Code of Conduct and other By-laws; and responding to requests for advice and assistance from time to time from the City and its staff.

5. Is there anything else you’d like our readers to know about your duties as Integrity Commissioner?

Other Matters relating to my Role as Integrity Commissioner. I refuse to act upon a purely oral complaint, and request the complainant to convey the information to me by email, mail or other written form, together with copies (I may seek originals later), of all relevant documents, and names of those who may have information about the facts alleged, whether supporting the complainant or not.

I believe that is is important for Council, its Members, and the public, to be aware of ethical principles, and I am in frequent contact with the City Clerk and City Solicitor, to discuss issues relevant to them with respect to the promulgation and effectiveness of the Code of Conduct relating to the Members of Council, and to provide through the Clerk’s office my reports which she is in a position to submit to the Council.

I encourage all Members of Council to contact me with respect to any issue involving the Code of Conduct, and its effect, and those of ethical principles and laws in general, upon their own responsibilities.

I am in a particularly appropriate circumstances to provide this guidance and assistance to them, due to the fact that, in addition to my role as Integrity Commissioner to the City, I am also its Lobbyist Registrar, and provide services to a number of other municipalities in Ontario Relating to codes of conduct and ethical and legal principles affecting the responsibilities of Councillors, I have practised exclusively municipal law for over fifty years, (I am the former Metropolitan Solicitor for the former Municipality of Metropolitan Toronto, whose a regional form of municipal government covered the geographical area now occupied by The City of Toronto. I was retained by the Province of Ontario in 1996 to assist in the creation and drafting of the Act which created that City). I am an active member of the Municipal Integrity Commissioners of Ontario, and am currently working as a member of its Sub-Committee on Principles and Standards). It is generally my practice to provide services to municipalities and their members of council.

I am also: co-author of: ONTARIO MUNICIPAL LAW - A USER’S MANUAL, an annual book of Municipal law published for a number of years by Thomson Reuters;

co-author of: ONTARIO MUNICIPAL CONFLICT OF INTEREST ACT, A Handbook; published by Municipal World; and
author of: HANDBOOK FOR MUNICIPAL COUNCILLORS, PUBLISHED by Carswell.

If there is one generalized statement I can make, is that every case depends upon its own facts and that its absolutely essential that the integrity commissioner perform her/his responsibilities with independence and fairness.

The Hamiltonian thanks Mr. Rust D'Eye for this information and for engaging with Hamiltonians via the Hamiltonian.