David Brown: October 19, 2013

How does a skillful municipal bureaucrat shield himself and his staff from criticism from an elected councillor?  Easy.  You write a code of conduct for your councillors and get them to pass it.

The City of Victoria Council was recently presented with a code of conduct.  Fortunately, it was shelved after criticism from various sources, including the BC Civil Liberties Association.

Section 8 of the Code, which was entitled Respect for Process, said that “it is important that once Council agrees upon a Council decision-making process that Council members not cast aspersions about the process if they disagree with the subsequent outcome” The BCCLA letter noted the fundamental problem with this.  “While we understand that some may find it preferable that elected representatives not criticize their own processes after the fact, it is unreasonable to expect that a Councillor not level such criticism if he or she feels it important to do so. Councillors are the guardians of these processes on behalf of constituents and they must have absolute latitude and freedom to comment on them – whether this is done for political expedience or as a matter of genuine concern or both.”

Section 9 – Interpersonal Communication of the Code reads that Councillors “must not use disrespectful or offensive language”  or “gestures” and “must not intimidate, nor make disparaging remarks as to the character or motives of other Council Members, staff or members of the public.”  The BCCLA letter said that “while Council certainly has some obligations by virtue of its position as the ultimate employer of City staff, and while fostering a respectful workplace is clearly a legitimate goal to be sought by the City of Victoria, this rule is terribly overbroad and virtually impossible in practice for any Councillor to observe.”  The letter went on to say “It is the job of elected politicians to speak their minds and to represent the views of their constituents. Political debate, by its very nature, can involve heated discussions on matters of great contention.  It can involve polemics and diatribes.  This may, again by its nature, result in people being offended.  It may involve people having their motives questioned and that is, as we would expect in any truly open and democratic process.  The accountability of Councillors for their conduct in these regards is to electors.”

It concluded its criticism of Section 9 by saying that to have mandatory prohibitions on certain types of expression by elected officials, backed up by the possibility of very serious penalties imposed by the City, is a violation of the freedom of expression which the City has a constitutional obligation to uphold.  “Moreover, it is a serious affront to the very spirit of deliberative democracy.  Councillors should not have to chill their expressions and carefully parse their public remarks for fear of serious penalties like a stripping of public resources from their work on behalf of constituents, stripping of offices, or other sanctions.”

Section 10 – Respectful Workplace included a statement that Councillors must be “supportive of the personal dignity, self-esteem and well-being of those with whom they come into contact during the course of their official public duties.”  If they failed in this respect the Code provided for possible punishment.  The BCLLA letter remarked “Again, this provision is likely to chill the expression of Councillors who may have reason to be pointedly and harshly critical of other elected officials, staff, individuals policies, plans, groups, and so forth.  A mandatory requirement not to offend against self-esteem, backed by a potential punishment, is contrary to the constitutional guarantee of freedom of expression and is a violation of the democratic spirit.”

Thankfully the Code was not adopted although the comments of the press and Victoria Councillors revealed very little understanding of freedom of speech in a robust democracy.  Several Councillors even remarked that the City already had comparable guides in place.

Other municipalities in Canada unfortunately have passed codes of conduct that severely limit criticism, which is essential to democratic society.  For example, Rule No. 10 of the Mississauga Code of Conduct reads “members of Council will accurately communicate the decisions of Mississauga City Council, even if they disagree with the majority decision of Council, and by doing so affirm the respect for and integrity in the decision-making processes of Council.”

It is difficult to imagine a more blatant way to chill opposition to Council decisions.  A critical Councillor will invariably be tagged with not accurately “communicating the decisions”.  Why should a Councillor be forced to affirm respect for and integrity of the decision-making process of Council when he or she disagree with that process and the decisions resulting from the process.  The commentary attached to the rule makes it even worse.  It says  “A Member should refrain from making disparaging comments about other members of Council or about councils, processes and decisions.  In other words, a Councillor cannot criticize Council decisions.  Missisauga does not tolerate opposition.  Goodbye democracy, Mississauga.

Rule No. 11 of the Missisauga Code keeps up the assault on political opposition when it says that Members “shall encourage public respect for the city and its bylaws”.  Why? –  if a Councillor disagrees with the bylaws and does not respect the type of decision-making being made in the City?  This Rule goes beyond telling a Councillor that he or she should not encourage citizens to violate a bylaw.  It compels a Councillor to be a cheerleader for a bylaw that he or she disagrees with and is totally inappropriate in a democratic society.

Rule No. 11 also says “Members shall conduct themselves with decorum at all times.”  Imposing such a requirement on a Councillor has no basis in a democratic society.  A Council is a political body and an elected member in a democratic society has every right to “rant and rave” at political meetings in the community and sometimes even to abandon “decorum” at a Council meeting.

Rule No. 13 reads, “Members shall be respectful of the role of staff to advise based on political neutrality and objectivity and without undue influence from any individual Member or faction of the Council.”  This rule effectively shields municipal management from criticism from Councillors.  It is also, of course, ridiculous to claim that staff advice is based on “political neutrality and objectivity”.  The import of such a statement is that staff advice is pure and above reproach.  A Councillor is essentially disallowed from stating that staff advice is anything other than politically neutral or objective.  Subrule 13(4) includes the further chilling provision “all members shall show respect for the professional capacities of the staff of the City.”  In other words, don’t disagree with what we say because we are the professionals and you are the know-nothing amateurs.

There are other egregious rules included in Mississauga’s Code of Conduct.  The sum effect of the Code of Conduct is to force Councillors to tiptoe around any criticism of staff or a policy that emanates from staff.  It also makes it difficult to criticize fellow Councillors and decisions made by the majority of fellow counselors.  The whole political role of a Councillor is essentially put on ice and a forced consensus replaces the dynamics of opposing views.

The Town Council in Carleton Place employs a kind of e-mail cop to ensure that councillors do not get out of hand.  The deputy mayor, Ed Sonnenburg, was reprimanded for a series of e-mails that used “offensive” language in a message to a resident and others that criticized the town’s chief administrative officer, Paul Knowles.  The town’s integrity commissioner, Robert Swayze, a lawyer in Caledon, Ont., suspended Sonnenburg’s pay for four weeks which was a penalty amounting to about $1,700.  Swayze cited a couple of examples of unacceptable behaviors: the Councillor sent e-mails about changes in a development plan discussed at meeting he apparently missed, only to learn the news from a ratepayer: “But then again, council has been proven over and over again to be powerless…and “For Paul (the CAO) once again a ratepayer is providing information to a councillor.” About a capital project in town: “Who decided to build what on whose authority — or is it just the CAO using his discretion again?” Council, it turned out, had approved the very work.

The Carleton Place Code of Conduct contains the following: “Members of council….shall treat every person including other Members of Council, corporate employees…and the public, with dignity, understanding and respect for the right to equality and the right to an environment that is safe and free from harassment and discrimination.” The writer of an article in the Ottawa Citizen the Councillor’s problems made the following comment: “On the one hand, especially among elected officials, is scrutiny and criticism of each other not just part of having a healthy democracy? It’s not kindergarten. Look at that band of partisan banshees up on Parliament Hill. One wonders, too, whether these limits on free expression would even stand up in court.

It is troubling, too, that the integrity commissioner has been delegated to decide what is and isn’t contrary to council’s code of conduct, which is written in that “everybody play nice” kind of language.”

These niceness provisions represent a new type of velvet authoritarianism.  Stripped of their surface sweetness, they signal the creeping progress of an Orwellian society.  Niceness does not conflate with a democratic society.  In fact, in our society “niceness” (or politeness) is increasingly becoming an instrument to still criticism and stop negative comment.  Democracy, fully practiced, is not always nice.

David Brown