Penalties for municipal misbehaviour 'toothless,' experts say as calls for change persist

When Toronto councillors debate John Tory's violations of the city's code of conduct next week, experts say they'll face the same problem their counterparts across Ontario face when dealing with similar violations: enforcement is "toothless."

Tory resigned in February after revealing he had an "inappropriate relationship" with a former staff member. This week, Toronto's integrity commissioner found the former mayor violated two sections of the city's code of conduct because of the affair.

But the watchdog recommended no punishment for Tory, in part because he is no longer in office.

Even if Tory were still on council and his colleagues wanted to sanction him, municipal lawyer John Mascarin says there's little they could do.

"The whole system is a little bit toothless," Mascarin said. "Even if Mr. Tory had remained in office as the mayor, what would have been the penalty? A reprimand or a suspension of pay for up to 90 days."

Mascarin says its a problem municipal councils across Ontario have grappled with for years. From sexual harassment and discrimination to ethics breaches stemming from abuses of influence, he says councils can do little more than symbolically call out bad behaviour and hit their misbehaving colleagues in the wallet.

"The city's hands are pretty much tied, all municipalities in Ontario's hands are tied, until the provincial government does something about it," he said.

Politicians around Ontario have attempted to address the problem in recent years.

At Queen's Park, Liberal MPP Stephen Blais has introduced three private members bills trying to give municipal integrity commissioners enhanced powers. Those bills would have allowed the watchdogs to refer the most egregious code of conduct violations to court. A judge would then determine if a politician should be removed from office and barred from running in subsequent elections.

Each time, the bills have stalled in Queen's Park's legislative process or been rejected by Premier Doug Ford's government. 

"Municipal elected officials in Ontario really aren't subjected to the same kind of workplace standards around harassment and violence," said Blais, who once served as an Ottawa city councillor.

"Any other employee would … face serious consequences for this kind of behaviour."

Blais's motivation for the bills followed multiple investigations by Ottawa Integrity Commissioner Karen Shepherd into the conduct of Rick Chiarelli, who was, at that time, a city councillor. 

Shepherd found allegations of sexual harassment from women who worked for the councillor credible and said that Chiarelli contravened the city's code of conduct.

Ottawa council voted unanimously to slap Chiarelli with three consecutive 90-day pay suspensions for the violations, in effect docking him $79,000 in pay. 

Campaign spending rules are stricter, says MPP

Currently, it takes a criminal conviction or missing three consecutive council meetings for a municipal councillor to lose their job. Right now, Blais says Ontario's municipal campaign financing rules have more serious consequences than code of conduct violations do.

"There's no recourse to those," he said of breaking spending rules. "The automatic penalty is to vacate your office."

The association that represents most of Ontario's 444 municipalities wrote to the province in 2021, urging it to adopt more stringent rules to address code of conduct violations.

The Association of Municipalities of Ontario advocated for the creation of an administrative penalty system for such violations along with beefed-up powers for council integrity commissioners.

Those changes would allow the watchdogs to recommend penalties up to and including removal from office, with those cases being referred to a court. A judge would then make the ultimate decision and provide an ability to appeal. 

"We believe that more can and must be done to help ensure municipal government continues to enjoy the confidence of our electors," wrote Graydon Smith. At the time he was AMO president. Now, he serves as one of Ford's cabinet ministers.

The government consulted on the issue in 2021, that same year, but has not yet introduced any changes. Blais said he was briefed at the time by ministry staff and it appeared legislation to change the rules was coming, but it never materialized.

"I spoke to Minister (Steve) Clark about this many, many times," Blais said of Ontario's previous municipal affairs minister. "I honestly felt that he was on board with taking some action. I think genuinely, he wanted to do something."

Ontario's Ministry of Municipal Affairs did not immediately respond to a request for comment. 

Former Toronto city councillor Joe Mihevc said while the current rules are weak, there is a strong message of deterrence sent to politicians simply by publicizing code of conduct violations.

"The rebuke comes from public knowledge that the code of conduct has been violated," he said. "So it really is up to the press to dutifully report and allow people to make their own judgment and assessment." 

Mascarin agrees. He points to the report on Tory as an important document which helps shine a light on improper workplace relationships, even if council can seek no further penalty. 

"I know a lot of people will say this: 'Wow, what was the cost of a 122-page report? How many man-hours were spent? And what, for maybe a slap on the wrist?'" he said. "To me, it's imperative that you have this sort of reporting. You have to (turn) a spotlight on wrongdoing."

Mihevc, who served on Toronto city council for decades, said the field of municipal codes of conduct has evolved greatly during that time and since. It's coming from a place were there were few rules to a growing intolerance for council misbehaviour.

He hopes that the discussion Toronto city council has this coming week will focus on the power dynamics at play when it comes to Tory and his former staff member, and not the relationship itself.

He says it's a chance to talk about proper workplace relationship rules and the need for safeguards to protect workers who may not be able to protect themselves.

"I'll be looking for (council) using this almost like a case study," he said. "I think that is the noble conversation to have."