Should you have to pay to file complaints about politicians?

Many city councils across Ontario are looking to fees as a way to rein in the costs of integrity-commissioner investigations — but critics say that approach threatens local democracy
By Justin Chandler - Published on Nov 19, 2020

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Earlier this year, Welland’s integrity commissioner determined that councillor Lucas Spinosa had made a “good faith” error when he failed to declare a conflict of interest related to a business he runs.

“When you find out you may have done something that could hurt people, it's not a good feeling,” says Spinosa, who issued a formal apology. “But even with that feeling, I know how important it is that people have access to holding their public officials accountable.” That’s why, last month, he joined other councillors in voting down a proposal that would have introduced a $200 filing fee for complaints (to be refunded if it they were found valid). The motion was defeated 12-1.

Well over a year since the Ontario government mandated that municipalities hire integrity commissioners, many city councils are looking to fees as a way to rein in investigation costs — which can run into the tens of thousands of dollars. Several municipalities in the Niagara region have introduced them; it costs $36.90 to file a complaint in St. Catharines, $100 in Fort Erie and Hamilton, and $200 in Niagara Falls and Grimsby.

But Spinosa and others suggest that such fees can act as barrier to legitimate complaints and damage local democracy. “Even if it's $1, it's too much, because, at the end of the day, we're being paid as councillors to represent people,” says Spinosa. “If we make a mistake, and we're charging residents upfront to file a complaint against us, that’s crazy.” Welland’s then-integrity commissioner, Harold Elston, ruled on five complaints this year and reported back to council. (According to the City, it paid $10,583.04 for Elston’s services between January 1 and October 15.)

While many Ontario municipalities had integrity commissioners prior to 2019, the role became mandatory in March of that year after an update to the Municipal Act. Commissioners apply local rules, policies, procedures, and codes of conduct to council members and the members of some local boards, such as health or police. They also impose certain conflict-of-interest rules and provide legal advice to councillors and board members.

chart
Data from the City of Niagara Falls; visualization by Justin Chandler.

David Arbuckle, a senior municipal administrator who researched the subject when he was studying at Western University, agrees that the role is important but suggests that bad-faith actors can take advantage of the arrangement. “If it isn't being used as a political tool but is actually being used by the public to ensure councillors’ actions are in line with what's being expected — as far as the actual code of conduct — there's value in that,” he says.

And its use as a political tool is one thing that can drive up costs, suggests Andrew Sancton, a retired Western University political-science professor who has researched accountability officers in Ontario. Some councillors, he says, will try to saddle one another with investigations: “One councillor makes a complaint against another councillor, and what used to be a feud between two councillors becomes something that the integrity commissioner has to go out and investigate. And that costs money and doesn't necessarily solve any problems.”

Concerns such as those prompted Niagara Falls’ city council, at a September 15 council meeting, to vote in favour of charging complainants $200. A report to council from the city’s human-resources department noted that, since 2015, nine complaints cost the city about $253,000 — about $176,000 of which was incurred during this term. (The city’s most recent annual operating budget was $147,462,262.) Many of the complaints were filed by or against councillor Carolynn Ioannoni, who has faced sanction a number of times.

Niagara Falls councillor Lori Lococo voted no because she didn’t want to prevent people who couldn’t afford $200 from complaining. She ordered a motion — which was ultimately defeated — to have staff investigate alternative dispute-resolution processes, such as mediation. “I definitely feel that a lot of the complaints are between specific people, and it is the communication between those people that needs to be addressed,” she says. “And going to the integrity commissioner is never going to address that issue.”

At the same meeting, council voted to send the report on integrity-commissioner costs to the Ministry of Municipal Affairs and Housing and to express concern that municipalities lack the ability to deter repeat offenders (a 90-day suspension is the maximum punishment). A spokesperson for the ministry told TVO.org, “We are aware of the concerns of the City of Niagara Falls council and have received their reports regarding Integrity Commissioner investigation costs.” City clerk Bill Matson told TVO.org that he had not received a response from the ministry as of November 18.

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Data from the City of Port Colborne; visualization by Justin Chandler.

Fees don’t appear to have averted issues in at least one Ontario municipality. The integrity commissioner in Elliot Lake said in June that city council was engaged in a “cycle of retaliatory complaints” that had cost the city about $375,000 in two years. Elliot Lake, whose annual budget is $12,315,808, charges a $50 fee to file complaints, but it’s refunded if the commissioner decides a complaint warrants investigation.

In Port Colborne, which does not have complaint fees, 2019/2020 integrity-commissioner costs claimed about $80,000 of the city’s roughly $42 million operating budget: about $65,000 went to three investigations and about $15,000 went to advice for councillors. City clerk Amber LaPointe says if the issue were to come up, she would discourage council from adopting a filing fee. “I have been given the advice through integrity commissioners, the ombudsman, and other clerk forums, that [imposing a fee would be] limiting access,” she says.

Indeed, after Welland councillors rejected the fee, Ontario’s ombudsman tweeted, “We were pleased to hear Welland councillors rejected a $200 fee for residents to file code of conduct complaints. Our Office strongly discourages all municipalities from charging fees to complainants. Well done, Welland!”

A spokesperson for ombudsman Paul Dubé told TVO.org via email, “We encourage protocols that allow for discretion to dismiss complaints that are frivolous or vexatious.”

Port Colborne’s chief administrative officer, Scott Luey, acknowledges that commissioners can reject requests that are deemed frivolous. But, he adds, “That's a very tough test to meet in advance of conducting the investigation.”

According to Luey, there’s not much that can be done about the “sticker shock” councils get when they see integrity-commissioner costs. “We know that the gentleman who does our integrity-commissioner investigations is charging us the appropriate hourly rate, and we know that he's spending that much time on the applications, so it's really a function of how we can limit our exposure as a municipality,” he says. “Unfortunately, the answer is: tell the councillors not to do things that would get a complaint against them.”

Ontario Hubs are made possible by the Barry and Laurie Green Family Charitable Trust & Goldie Feldman.

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