We take exception to Minden Hills council’s decision to not reprimand Coun. Tammy McKelvey after the integrity commissioner ruled she’d breached the Municipal Act’s code of conduct.
As reported in today’s Highlander, on May 21, McKelvey drove onto private property, along a newly-built road, to take a picture of an alleged illegal development.
Let’s start there. She drove on private property. She could have been charged with trespassing under the Trespass to Property Act.
I understand McKelvey’s motives. She was contacted by constituents who were concerned about the development. But she should have passed the complaints to staff. Instead, she went to investigate. In the past, councillors had much more freedom to do this sort of thing. However, the Municipal Act is very clear about this. As the integrity commissioner noted, council and councillors have a policy-setting role, not an administrative or operational role. He said going to a site and taking pictures is not the proper role for a member of council. Staff should be doing this. The integrity commissioner felt the councillor was encouraging staff to enforce in the instance.
McKelvey told council and the public at last week’s meeting she felt she had not violated the code of conduct; but had done what any other member of council has been asked to do – investigate a complaint and then send information to staff. Some of her council colleagues, and many of her constituents, would say she did the right thing.
However, the integrity commissioner, a lawyer hired by all townships to ensure they do not breach code of conducts – an expert in the field – did not accept the response.
He said there was no other reason to attend the site and take pictures other than to demonstrate to staff that the activity was occurring. Enforcement actions always start with an initial site visit and then an assessment of next steps. He said McKelvey became part of the enforcement, though not authorized to do so.
All councillors were asked to comment on recommendations. Coun. Bob Sisson said he thought all councillors were guilty of similar actions sooner or later. He’s had people call him and passed the information on. He believes the whole thing was blown out of proportion. Coun. Ivan Ingram had no intention of agreeing with recommendations.
Mayor Bob Carter, deputy mayor Lisa Schell, and councillors Shirley Johannessen and Pam Sayne did not publicly comment on the recommendations.
By not accepting the integrity commissioner’s suggestions, council has basically dismissed the opinions of its expert, highly-paid, integrity commissioner, and sent a message that councillors can drive onto private property to gather evidence for staff.
We wonder how this makes staff feel? Is there a perception they are not up to the job?
Further, the integrity commissioner said in his report such behaviour may make it more difficult to prosecute and could result in an order of the court that evidence be suppressed because the municipality gathered evidence without legal authority.
Under legislation, staff have the right to inspect properties in certain circumstances and that evidence is admissible in court. Council members have no authority to engage in operational matters. Any ‘evidence’ gathered by a councillor is not admissible, and the fact that a councillor was on-site early in the process without legal authority might be a reason to refuse to admit other evidence, even if it was gathered legally afterwards. This obviously has serious repercussions for the township and underscores why councillors must respect their roles, the integrity commissioner said.
Our concern: a councillor going on private property to take photos and thinking she did nothing wrong; a council ignoring the findings of its expert integrity commissioner; and the message it sends to the public.
