MUNICIPAL CODES OF CONDUCT

CODES OF CONDUCT

The thing about 21st century totalitarianism is that it seems so nice at first appearance.  Like Codes of Conduct.   Shouldn’t codes of conduct be welcome.  Isn’t it a social good to encourage people to be polite to one another?

Codes of conduct have been notoriously imposed on many U.S. campuses.  But free speech limiting, democracy restricting codes are not limited to universities.   For example they are being widely adapted by municipal governments in Canada.  This is particularly true in Ontario, which in many ways is Canada’s  leader in “soft authoritarianism”. Codes of conduct have been popping up here and there all over the province.  Missisauga, is a sprawling suburban town outside of Toronto which was famous for its (now retired) 93 year old mayor, Hazel McCallion.  It also has a very extensive Code of Conduct governing its elected Council.  It is appropriately divided into rules - yes, a list of rules just like the Councillors would have been subjected to forty years earlier in high school.

Rule No. 10 of the its Code of Conduct reads “members of Council will accurately communicate the decisions of Mississauga City Council, even if they disagree with the majority decision of Council, and by doing so affirm the respect for and integrity in the decision-making processes of Council.”  It is difficult to imagine a more blatant way to chill opposition to Council decisions.  A critical Councillor will invariably be tagged with not accurately “communicating the decisions”.  Why should a Councillor be forced to affirm respect for and integrity of the decision-making process of Council when he or she disagree with that process and the decisions resulting from the process.  

The commentary attached to Rule No. 10 makes it even worse.  It says  “A Member should refrain from making disparaging comments about other members of Council or about councils, processes and decisions.  In other words, a Councillor cannot criticize Council decisions.  Missisauga does not tolerate opposition.  Goodbye democracy, Mississauga.

Rule No. 11 of the Missisauga Code keeps up the assault on political opposition when it says that Members “shall encourage public respect for the city and its bylaws”.  Why? -  if a Councillor disagrees with the bylaws and does not respect the type of decision-making being made in the City? This Rule goes beyond telling a Councillor that he or she should not encourage citizens to violate a bylaw.  In compelling a Councillor to be a cheerleader for a bylaw with which he or she disagrees, it is totally inappropriate in a democratic society.

Rule No. 11 also says “Members shall conduct themselves with decorum at all times.”  Imposing such a requirement on a Councillor also has no basis in a democratic society.  A Council is a political body and an elected member in a democratic society has every right to “rant and rave” at political meetings in the community and sometimes even to abandon “decorum” at a Council meeting or elsewhere.  

Rule No. 13 reads, “Members shall be respectful of the role of staff to advise based on political neutrality and objectivity and without undue influence from any individual Member or faction of the Council.”  This rule effectively shields municipal management from criticism from Councillors.  It is also, of course, ridiculous to claim that staff advice is based on “political neutrality and objectivity”. The import of such a statement is that staff advice is pure and above reproach.  A Councillor is essentially disallowed from stating that staff advice is anything other than politically neutral or objective.  Subrule 13(4) includes the further chilling provision “all members shall show respect for the professional capacities of the staff of the City.”  In other words, don’t disagree with what we say because we are the professionals and you councillors are the know-nothing amateurs. 

The Town Council in Carleton Place employs a cop to ensure that councillors do not get out of hand. The deputy mayor, Ed Sonnenburg, was reprimanded for a series of e-mails that used “offensive” language in a message to a resident and others that criticized the town’s chief administrative officer, Paul Knowles.  The town’s integrity commissioner, Robert Swayze, a lawyer in Caledon, Ont who at the time was the integrity commissioner for nine different Ontario municipalities, suspended Sonnenburg’s pay for four weeks which was a penalty amounting to about $1,700.  Swayze cited a couple of examples of unacceptable behaviors: the Councillor sent e-mails about changes in a development plan discussed at meeting he apparently missed, only to learn the news from a ratepayer: The e-mail: “But then again, council has been proven over and over again to be powerless” ... and “For Paul (the CAO) once again a ratepayer is providing information to a councillor.” Or another e-mail about a capital project in town: “Who decided to build what on whose authority --- or is it just the CAO using his discretion again?” Council, it turned out, had approved the very work.

The Carleton Place Code of Conduct contains the following: “Members of council....shall treat every person including other Members of Council, corporate employees...and the public, with dignity, understanding and respect for the right to equality and the right to an environment that is safe and free from harassment and discrimination.” The writer of an article in the Ottawa Citizen concerning the Councillor’s problems made the following comment: “On the one hand, especially among elected officials, is scrutiny and criticism of each other not just part of having a healthy democracy? It’s not kindergarten. Look at that band of partisan banshees up on Parliament Hill. One wonders, too, whether these limits on free expression would even stand up in court.  It is troubling, too, that the integrity commissioner has been delegated to decide what is and isn’t contrary to council’s code of conduct, which is written in that “everybody play nice” kind of language.”

It is troubling that an unelected official can exercise this kind of authority over an elected councillor. Councillor Sonnenburg was essentially reduced to a civil servant by a non-elected “Integrity Commissioner”.  It doesn’t matter if the councillor’s comments were accurate or inaccurate - it is incompatible with democracy that he can be punished for making these kinds of comments.

Port Hope (Ontario, of course) exemplifies everything that is perversely undemocratic about municipal codes of conduct.  Under the heading “What are the Responsibilities of Council Members?”  one finds this statement “Political Activity - Members of Council are to be allowed as great a measure of political rights as can be reconciled with the need to ensure the fact and appearance of impartiality, in the performance of their duties with the Municipality as Members of Council. The point at which any appropriate balance can be struck in any particular case depends primarily on the nature and level of the Council Member's responsibilities.”  This statement basically says that the political freedom of a councillor is something that we will try to allow but don’t count on it.  The drafter of this document suffers from democracy impairment - an elected councillor is a politician and as such it is his or her role to express their opinions and to represent the views of their constituents.  He or she is not “allowed” political rights.  Political rights are fundamental to being a democratically elected representative. 

Even more outrageous is Port Hope’s provision on Public Comment: “In accordance with the Municipality's Communications Policy, By-law Number 115/2007 every member of Council shall display the reserve inherent in his/her position with the Municipality when publicly expressing his/her personal opinions on matters of political controversy or on existing or proposed municipal policy or administration. This policy is not intended to restrict the legitimate public comment of spokespersons of Council, nor the public comment of Council Members on matters of essentially a personal interest related to his/her position as a Council Member with the Municipality of Port Hope.”

A councillor is not required to display any “reserve” when it comes to publicly expressing his/her personal opinions on matters of political controversy or an existing or proposed municipal policy or administration.  To quote from a letter written by the B.C. Civil Liberties Association when the City of Victoria was considering a similar conduct provision “Political debate, by its very nature, can involve heated discussions on matters of great contention.  It can involve polemics and diatribes.  This may, again by its nature, result in people being offended.  It may involve people having their motives questioned and that is, as we would expect in any truly open and democratic process.  The accountability of Councillors for their conduct in these regards is to electors.”  

Michael Vonn of the B.C.C.L.A. made a particularly valid point about codes of conduct that prohibit councillors from openly criticizing staff.  She said "The downside if you have a code of conduct that includes the requirement that you respect or consider the self-esteem of staff and colleagues, you really are in an area of chilling appropriate political speech.  Obviously in the context of debate, people are going to disagree. You have to allow for that disagreement without the chill of having somebody being brought up on a conduct matter."

What we see with codes of conduct is the downgrading of municipal councils to the role of an advisory board to the unelected bureaucrats. Is it the level of democracy closest to the people or it is it the level of bureaucracy with the closest control over the people?  One has to think the latter is more accurate.