By: Sylene Argent, Local Journalism Initiative Reporter, Essex Free Press
Council for the County of Essex took part in a special meeting that went over the Council Code of Conduct, Governance, Roles, and Responsibilities on December 17.
John Pappas, Associate at Aird & Berlis LLP, provided the review of the Council Code of Conduct, which was enacted in November of 2023.
This session was part of the approved Council training plan and strategic initiatives set by Council.
He spoke to County Council about the role of a member of an upper-tier Council. Essex County Council is an upper-tier decision-making board, comprised of the Mayors and Deputy Mayors of the seven local municipalities.
The County is a separate and distinct legal entity from the lower-tier municipalities, Pappas explained.
“County Council is the directing mind of the corporation; it’s not its individual members. No one individual member has the authority to bind the corporation or issue directions to staff,” Pappas explained.
“It’s common ground, I think, when serving in any decision-making capacity — whether it’s a board or a corporation, whether on a municipal corporation – you owe a duty… to act in the best interests of the corporation and the citizens that they represent,” Pappas said.
He called members of County Council “stewards of the public interest to exercise decision-making for the benefit of the public.”
There’s a fiduciary obligation for reps to put aside their own interests and act in the best interest of those for whom they are making decisions.
He walked County Council through the duty of a municipal Councillor when sitting on County Council. Council members for County of Essex are elected in their municipalities and also serve the County office, as well.
They are simultaneously making decisions for their municipalities and at the County-level.
“How do you reconcile those two roles?” Pappas asked, before explaining “When a member of municipal council serves as a decision-maker on another body – be it County Council, be it a conservation authority, be it the library board – the member is obligated to act in the best interest of that other body when called on to make decisions on its behalf.”
That applies regardless of the interest, or instructions, or decisions of the body that appointed them or your local municipality.
“You are not here making decisions for the County solely as an agent or spokesperson of the local municipality,” he explained.
He provided examples that went to court to support that sentiment.
“You owe a fiduciary duty to your local area municipality, and that is well accepted. You also owe a fiduciary duty simultaneously to the corporation of the County of Essex,” Pappas said, adding, when they are acting in a local capacity, they have to act in the local municipality’s best interest. When sitting at County Council, they must act in the County’s best interest.
There could, however, be differences in opinion or views on what is good for the municipality or County.
The way to think of this is that each member must “temporarily suspend their obligations to the other body and decline to consider irrelevant factors as to what might be in the [local] municipality’s best interest,” he relayed.
That doesn’t mean they can’t consider the impact of their decision on other interested stakeholders.
He added there is “no singular correct answer” as to how Council reps exercise that judgement.
“What this requires of you is to exercise your discretion, keep an open mind, and make determinations as to what’s in the best interest of the decision-making body you are sitting on at the time you are called on to make that decision.”
Pappas also spoke about confidential information and how all Codes of Conduct have provisions dealing with the protection of confidential information. Sitting in one capacity, a Council rep may have obtained information that might help or inform a decision made in the other context.
“There is no doubt you can’t ignore or erase the fact that you’ve seen that information,” Pappas said. They are required, however, to shield that information from disclosure from the other body, unless properly authorized to do so. Councillors have a common law duty obligation to keep an open mind during discussion and deliberations, and are bound by the Municipal Conflict of Interest Act (MCIA) to avoid voting in conflicts of interest where their direct and indirect (through family or other entities or organization one may have a connection or role) pecuniary or financial interests are engaged.
In addition, he spoke of supporting decisions made by Council. Councillors may have differing views of what is appropriate or in the best interest of the County. Council as a whole is the general agent of the corporation for all purposes and the means to which the corporation can bind itself to a course of action.
“Council speaks with one voice,” Pappas added. “There needs to be solidarity after a decision is made. The time for disagreement and debate is on the floor of Council. Once a decision is made – you may agree, you may disagree – but you can’t work to undercut or undermine that decision.”
The head of Council – the Mayor or Warden – is the only member with the authority to communicate about the decisions made by a member of Council, he said. All members of Council have an ethical obligation to fairly and accurately communicate the decisions of Council and respect Council’s decision-making process, even if they disagree, Pappas relayed.
In answering Amherstburg’s Deputy Mayor Chris Gibb on how a Councillor can speak when in disagreement with a Council decision, Pappas said their obligation through the Code of Conduct is to communicate the decision of Council factually and accurately. They can say, “Council’s decision was X, I voted against it.”
A Councillor, he said, can indicate why a Council did or did not support a decision, and to some extent their own views.
“When you start to get into the territory of ‘Council was wrong,’ ‘it was the dumbest decision Council ever made’… that’s when you then start to tread on contraventions of the Code,” Pappas said.