Leave the Room!

When a Council or Board member of a regulator has a conflict of interest, is simply declaring the conflict sufficient? A recent municipal Council case provides useful guidance on this question.

In Budarick v. the Corporation of the Townships of Brudenell, Lyndoch and Raglan (Integrity Commissioner), 2022 ONSC 640 (CanLII), https://canlii.ca/t/jm283 the son of a municipal Councillor was invoiced by the fire department for a call related to lighting an open fire during a fire ban. The issue of the invoice came up at some Council meetings. The Councillor declared a conflict of interest but stayed in the room. During one meeting the Councillor proceeded to question a representative of the fire department about related matters (e.g., its fundraising, and general policies and procedures related to invoicing for calls). Some of that information was later used by the Councillor in representing her son in contesting the invoice in other venues. In another meeting that was closed to the public, the Councillor remained in the room.

The Court upheld the findings that the Councillor had acted in a conflict of interest. Simply declaring the conflict was insufficient. The questions by the Councillor of the broader policy issues were inappropriate in the circumstances: “when a member has a pecuniary interest in a matter under discussion in a council, the member should refrain from entering the fray, even in respect of issues that may seem tangential”. The Court also accepted favourably the comment of the lower court as follows:

I find it is more likely than not that the Respondent’s questions and comments were designed and intended to denigrate the Fire Department’s practices, to create doubt regarding service charges and to obtain information for the purpose of enhancing her son’s ability to challenge or reduce the invoice he received.

The Court also upheld the finding that the Councillor should have left the room of the closed meeting discussing her son’s invoice. In addition, the Court upheld the finding that the breach of the conflict of interest was, in all of the circumstances, intentional and not a mere error of judgment. Those circumstances included the Councillor’s use of her position of the Council to attempt to influence other municipal entities on the matter. The Councillor was ultimately removed from office.

While this decision turns somewhat on the language of the municipal conflict of interest legislation, it reinforces the best practice for Council, Board and Committee members of regulators to not only declare any conflicts of interest, but to then leave the room when the matter is discussed (even if it is a public meeting) and to not try to influence the decision. This duty cannot be circumvented by attempting to couch one’s input on the matter in terms of broader policy issues that are obviously related to the issue.

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