Discussing conflict of Interest in Municipal Councils

At the RM of McKillop’s first meeting on November 14, the subject of conflict of interest (COI) arose. Council was discussing a previously defeated rezoning application, resulting in a tie of 3/3. The applicant asked for it to be reconsidered because one councillor resigned before the vote, leaving the council one vote short. The applicant believed that the councillor would’ve supported the application.

This application was to rezone from agricultural to commercial. Later, the applicant wants to apply to have a campground. There are multiple additional necessary steps before approval or denial. Another application would need to be put forward, public notice, and a hearing would take place before any decision.

New Councillor for Division 4 is Mark Strong, owner of Rowan’s Ridge RV Park. He ran his campaign, in part, on being pro-business. When discussing the rezoning application, Councilor Howard Arndt (who voted against the application) cautioned Strong. “I would ask Mark to look very closely at the Municipality’s Act, specifically the part in Conflict of Interest. Because you are talking about a business that you are already in…” Strong responded that he is very pro-business. Arndt said, “Council can’t stop you from doing things but this is one that I see you are right on the edge.”

Councillor Don Whitrow said, “He doesn’t gain anything directly from our decision on whether this campground goes ahead or not.” Arndt responded, “He can, because what we agree to… then will then apply to this.” Whitrow responded, “the campground decisions were made prior to this thing.”

CAO Brandi Morissette interjected, “But we are not even talking about that right now. We are talking about subdivision to commercial.” Arndt- “But for the purpose of a campground.” Arndt said he was letting Strong know for his own protection. Reeve Schmidt said, “he’s been instructed so it’s up to him to decide.” Council then moved on to the next agenda item.

Conflict of interest can be complicated. So we reached out to an expert in the field of municipal governance.

Keith Comstock is the former Assistant Deputy Minister at the Ministry of Government Relations. He is currently an executive-in-residence at the Johnson Shoyama Graduate School of Public Policy. He said;

“The legislation says:

1. A member of the council has a COI if he/she makes or participates in making a council decision and at the same time knows or ought reasonably to know that the decision may further his/her private interests or the private interests of a closely connected person.

2. “Closely connected person” is defined as the agent, business partner, family or employer of a member of council

3. “family” is defined as the spouse and dependent children of a member of council

The legislation is very clear that the onus is on individual members of the council to determine if they have a COI on a matter before the council. When we talk about this in workshops, we stress that you want to both avoid COI’s (by identifying them and dealing with them appropriately) and also address any perception of a conflict. Where there are disagreements about the existence of a COI - only the courts can formally rule if there is one or not...the GoS/ministry has no role in that.

The bottom line is as a member of council, you cannot use your office to influence a decision made by another

person to further your private interests or the private interests of a closely connected person. A council member must disclose an interest each and every time the matter, in which an interest is held, is brought before the council. Disclosure of an interest at one meeting does not carry over to other meetings or last for the full term of council. If a council member is absent from a council meeting where a matter that the member has an interest is discussed, the member must disclose the interest at the next council meeting.

Many times people have questions about what to do if they feel they have a COI on a matter before the council.

We advocate a 5 step process:

The legislation also identifies a variety of situations where it is deemed that a councillor does NOT have a COI. Generally, these are situations where a “strict” interpretation of COI might indicate all members of council could be perceived to have a COI – OR situations where the member is appointed by council to represent council on another organization - OR - situations where a COI could exist simply by being a resident of the community. (For example - a councillor votes on an increase in water rates but he/she also has a water bill account with the municipality)

My message to elected folks is to err on the side of caution where they are unsure if a COI exists. On the one hand, they are only one vote...but on the other hand, sometimes even the perception of a COI can taint the work of council or how individual councillors are viewed in the eyes of the public.”

The following is the official response from the Ministry of Government Relations on our questions trying to drill down into the weeds. In their response, they said that if a councillor is not sure they should seek advice from legal counsel.

A conflict of interest is a situation where a council member participates in a decision that may benefit their own private interests.

The first step is to determine if there is, or maybe, a conflict of interest. Council members are in the best, and sometimes only, position to identify which private interests may overlap with their official duties. If the council member feels there is a conflict of interest, they are responsible for declaring the conflict and to remove or recuse themselves from participating in the discussion and decision-making with respect to the affected matters.

If the council member is not sure if there is a conflict of interest, they should seek the advice of legal counsel.

If a councilor has a conflict of interest but would like to speak on a matter as a taxpayer, they can leave their position at the council table and speak to the issue, as any other taxpayer can. They cannot speak or represent the council in any way or be involved in any decision-making process.

All declarations of a conflict of interest must be recorded in the council meeting minutes.

When we spoke to Mark Strong after the meeting, he said he would be looking to the CAO to advise him. The matter has been tabled to the next meeting to allow the applicant time to bring the three new councillors up to speed on her plans.

We reached out to CAO Brandi Morisette for more information, but didn’t get a response before publication.

Footnote: The last time LMT received a response from the RM of Mckillop office regarding process or clarification questions was March 21, 2022.

Jennifer Argue, Local Journalism Initiative Reporter, Last Mountain Times