Integrity commissioner finds no fault with Billings councillors after complaint

Township of Billings

KAGAWONG – Two Billings Township councillors have been found to not be in contravention of the Municipal Conflict of Interest Act (MCIA) and the Township of Billings’ Code of Conduct. The investigation was completed by Expertise for Municipalities (E4m), the integrity commissioner for the Township of Billings.

Shawn Mahoney of E4m presented the findings into the matters respecting Councillors Sharon Alkenbrack and Sharon Jackson at a Billings council meeting on July 19. An investigation began after the integrity commissioner received correspondence directed to Mayor Ian Anderson on July 27, 2020, in which a member of the public alleged “that two members of council were in contravention of the MCIA and the Code of Conduct,” said Mr. Mahoney. 

“Our office contacted the member of the public and received a formal request for inquiry on September 8, 2020,” he said. “The applicant is a member of the public and an elector under the MCIA and was therefore entitled to make an application for an inquiry under Section 223.4 and 223.4.1 of the Municipal Act.”

The applicant alleged that both councillors contravened section 5(1)(a) and (b) of the MCIA by failing to declare a pecuniary interest in a matter considered by council at their meeting on June 15, 2020, relating to the opening of the Kagawong Market. The applicant further alleged the councillors contravened section 12 of the Code of Conduct, which prohibits the use of municipal resources for personal gain. 

On June 15, 2020, Billings council considered and passed a resolution related to the Kagawong Market. The resolution, moved by Councillor Barker and seconded by Councillor Hunt, directed staff to proceed with planning for the 2020 Kagawong Market at the Old Church on the Hill/dog park area. 

CAO/Clerk Kathy McDonald and Mayor Anderson advised the investigator that “the matter was considered by council more as a courtesy due to the restrictions in place related to COVID-19 and because the municipal emergency group had decided for public safety that the market could not open at the usual site due to construction, so an alternative site was needed if the market was to open. It was the recommendation of the municipal emergency group that the Old Church on the Hill/dog park area be the preferred site.” A decision to open would be made closer to the July 1 date and would be dependent on COVID-19 restrictions. 

The market went ahead on July 1 and was attended by the applicant. “In the merchant area,” the applicant wrote, “I became aware that Billings Township Councillor Sharon Alkenbrack was selling loose leaf teas. Sharon Alkenbrack sells loose leaf teas under the business name Manitoulin Tea Company.” The applicant also alleged that Councillor Jackson was at the Kagawong market on July 1, 2020, “assisting her spouse in selling goods.”

The applicant wrote, “First of all, these are both legitimate businesses so, of course, I have no objection to councillors running private businesses. However, the MCIA, R.S.O. 1990, cM 50 Section 5.1 outlines a clear expectation that pecuniary interest will be disclosed using a specific procedure if a councillor has a direct interest in a council decision. So I have questions. Why was pecuniary interest not declared by councillors and why didn’t councillors remove themselves from decision-making?”

The applicant also referred to the municipal Code of Conduct, Section 12, which prohibits the use of municipal resources for anything except municipal business. “Why have councillors used municipal resources for private business? Why didn’t councillors book themselves to participate in either of the two market spaces provided by business owners this year and avoid the pecuniary interest situation altogether?”

Neither councillor declared a pecuniary interest with respect to the market before, during or after the June 15, 2020 council meeting as neither believed they had a prohibited pecuniary interest at the time. The investigators determined both did have a pecuniary interest in the market. The question was when that interest arose.

The market coordinator confirmed that Councillor Alkenbrack contacted her one week after the council meeting to inquire about a booth. It was also confirmed that Councillor Alkenbrack had not previously participated in the market during its more than 15-year duration. The investigators concluded that Councillor Alkenbrack’s pecuniary interest occurred on June 23, 2020. 

Councillor Jackson did not contact the market coordinator until June 30 to inquire if husband Craig Jackson could have a booth at the July 1 market as they were both off work on that day. The investigators found that Mr. Jackson’s pecuniary interest therefore materialized on June 30, 2020. When council made the decision on June 15, 2020, Councillor Jackson did not have a pecuniary interest in the matter.

The investigators also determined that because all potential vendors at the market would have had the same pecuniary interest as Councillors Alkenbrack and Jackson, it would be excepted under section 4(j) of the MCIA. They would not be required to comply with section 5 of the MCIA.

An additional complaint from the applicant was received on November 13, 2020 alleging the councillors failed to declare a pecuniary interest in the township’s ‘Christmas in Kagawong’ event. Councillor Alkenbrack had a booth at the event in both years and Councillor Jackson’s spouse, Mr. Jackson, had a booth in 2019. The event is organized by the economic development committee (EDC), of which Councillor Alkenbrack is chair and Councillor Jackson is a member. The investigators noted that members of the EDC who also sit on council have a pecuniary interest in matters that the EDC has a pecuniary interest in. Additionally, individual members may also have a pecuniary interest in matters before the ECD. 

The applicant advised that Councillor Alkenbrack was a member of the EDC, that the EDC is responsible for planning and coordinating an annual Christmas in Kagawong vendor event, that none of the EDC minutes contained any declaration of pecuniary interest and that on November 16, 2019 at the Christmas event, Councillor Alkenbrack was selling her tea.

Councillor Alkenbrack did not believe she had a pecuniary interest with respect to the Christmas market and as such, did not make a declaration during the meeting.  “The Christmas event is organized by the EDC, which is a committee of council,” Councillor Alkenbrack told the investigator. “There are seven members, six who vote. The committee organizes the event, does the decorating and whatever is necessary to make it a success. The event brings in anywhere from 1,000 to 2,000 people to the community in November at a time when our community is not very busy, so this event brings people here for the event and then people go to other shops in our village. This event is a big fundraiser for the church in the community and the museum and our library, who all benefit from the event.”

At an August 24, 2019 meeting, the EDC set the date for the Christmas event. At an October 10, 2019 meeting, the EDC resolved to request a $400 budget from council for supplies needed for the event but did not establish vendor rates for the Christmas event nor did they make recommendations to council related to fees and charges for the event. The October minutes also reported 25 vendors had been confirmed. While both councillors were deemed to have a pecuniary interest, that interest would be accepted as an interest in common as per 4(j) of the MCIA. 

Councillor Alkenbrack was also alleged to have failed to report a pecuniary interest related to a September 9, 2020 EDC meeting and a September 21, 2020 council meeting. The investigators reported there was no additional information to substantiate an opinion other than, “Councillor Alkenbrack would have a prohibited pecuniary interest in the EDC decision on August 24, 2019 and other decisions related to the running of the Christmas Market, but her interest would be accepted as an interest in common as per 4(j) of the MCIA.”

“Participating at events that have been hosted by the township does not trigger a contravention of this section of the Code of Conduct,” Mr. Mahoney read.  

The integrity commissioner also considered whether to make an application to the courts for breach of the MCIA and whether they had contravened section 12 of the Code of Conduct. While the integrity commissioner is given broad powers to investigate, they are not vested with the authority to make a final decision and the determination of whether to apply to a judge should generally be contingent on the outcome of the investigation. If the MCIA has been breached, that should result in a decision to apply to a judge. If there is no finding of conflict, a court application should not be pursued.

“We will not be applying to a judge with respect to the allegations that Councillor Alkenbrack and Councillor Jackson contravened the MCIA,” Mr. Mahoney said.

The lengthy inquiry process included interviews with the applicant, many township staff, councillors and the market coordinator. “The investigators found the witnesses and both councillors to be credible. They participated in the investigation, provided supporting evidence and cooperated with requests for additional information,” said Mr. Mahoney. 

E4m did make recommendations that council adopt a formal complaint policy that outlines the process that will be used by the township when considering non-integrity commissioner complaints; that council adopt an expected behaviour policy that explains to residents council’s expectations regarding their behaviour; and that council update  and clarify their Code of Conduct.