Thoughts and Opinions On Today's Important Issues

Friday, February 10, 2006

Disclosures Of Pecuniary Interest And The General Nature Thereof

As I am sure that you know, at the start of every Council meeting, the first item is "Disclosures of Pecuniary Interest and the General Nature Thereof"

You have heard Councillors say that they cannot take part in a matter because they are personally involved or have property in the area or have a spouse or child employed with a person involved or is a member of a union involved or receives or about to receive retirement benefits.

I thought for those of you who were interested (or for those of you who wanted something to help put them to sleep) I would set out some of the relevant sections of the Ontario Municipal Conflicts of Interest Act that governs this matter.

Note that the consequences of breaching the Act can be very severe if a member of Council breaches the rules.

1. In this Act,
“elector” means, (a) in respect of a municipality, a person entitled to vote at a municipal election in the municipality
“interest in common with electors generally” means a pecuniary interest in common with the electors within the area of jurisdiction
“meeting” includes any regular, special, committee or other meeting of a council
“member” means a member of a council or of a local board; (“membre”)
“parent” means a person who has demonstrated a settled intention to treat a child as a member of his or her family whether or not that person is the natural parent of the child; (“père ou mère”)
“spouse” means a person to whom the person is married or with whom the person is living in a conjugal relationship outside marriage. (“conjoint”)

Interest of certain persons deemed that of member
3. For the purposes of this Act, the pecuniary interest, direct or indirect, of a parent or the spouse or any child of the member shall, if known to the member, be deemed to be also the pecuniary interest of the member. R.S.O. 1990, c. M.50, s. 3; 1999, c. 6, s. 41 (2); 2005, c. 5, s. 45 (3).

Where s. 5 does not apply
4. Section 5 does not apply to a pecuniary interest in any matter that a member may have,
(j) by reason of the member having a pecuniary interest which is an interest in common with electors generally; or
(k) by reason only of an interest of the member which is so remote or insignificant in its nature that it cannot reasonably be regarded as likely to influence the member.

Duty of Member
When present at meeting at which matter considered
5. (1) Where a member, either on his or her own behalf or while acting for, by, with or through another, has any pecuniary interest, direct or indirect, in any matter and is present at a meeting of the council or local board at which the matter is the subject of consideration, the member,
(a) shall, prior to any consideration of the matter at the meeting, disclose the interest and the general nature thereof;
(b) shall not take part in the discussion of, or vote on any question in respect of the matter; and
(c) shall not attempt in any way whether before, during or after the meeting to influence the voting on any such question.
Where member to leave closed meeting

Disclosure to be recorded in minutes
6. (1) Every declaration of interest and the general nature thereof made under section 5 shall, where the meeting is open to the public, be recorded in the minutes of the meeting by the clerk of the municipality or secretary of the committee or local board, as the case may be.

Who may try alleged contravention of s. 5 (1-3)
8. The question of whether or not a member has contravened subsection 5 (1), (2) or (3) may be tried and determined by a judge. R.S.O. 1990, c. M.50, s. 8.

Who may apply to judge
9. (1) Subject to subsection (3), an elector may, within six weeks after the fact comes to his or her knowledge that a member may have contravened subsection 5 (1), (2) or (3), apply to the judge for a determination of the question of whether the member has contravened subsection 5 (1), (2) or (3).

Power of judge to declare seat vacant, disqualify member and require restitution
10. (1) Subject to subsection (2), where the judge determines that a member or a former member while he or she was a member has contravened subsection 5 (1), (2) or (3), the judge,
(a) shall, in the case of a member, declare the seat of the member vacant; and
(b) may disqualify the member or former member from being a member during a period thereafter of not more than seven years; and
(c) may, where the contravention has resulted in personal financial gain, require the member or former member to make restitution to the party suffering the loss, or, where such party is not readily ascertainable, to the municipality or local board of which he or she is a member or former member.

Saving by reason of inadvertence or error
(2) Where the judge determines that a member or a former member while he or she was a member has contravened subsection 5 (1), (2) or (3), if the judge finds that the contravention was committed through inadvertence or by reason of an error in judgment, the member is not subject to having his or her seat declared vacant and the member or former member is not subject to being disqualified as a member, as provided by subsection (1).

So there you have it...a bit of learning about Council and the law courtesy of WindsorCityBlog.