Whistler’s elected officials and top bureaucrats chewed over a draft code of conduct brought before the Feb. 6 committee of the whole meeting for an hour and a half last week, delving into the weeds for clarification and raising issues with the proposed rulebook elected officials would be expected to live by.
The Resort Municipality of Whistler’s (RMOW) coordinator for special legal projects, Brooke Vagelatos, gave the lay of the land in presenting the rationale behind a new code of conduct for elected officials, explaining legislative changes from the province in 2021 (and guided by input from the Union of BC Municipalities) require municipalities to consider the implementation of changes to their existing codes of conduct.
The RMOW has a code of conduct now, but according to Vagelatos it is an appendix to council’s governance manual, hasn’t been changed since it was introduced in 2005, and needs changes to bring it in line with the province’s expectations.
“The goals of this bylaw if it were adopted would be to set out these behavioural expectations for our elected officials,” Vagelatos said.
“It would establish both informal and formal resolution procedures, [and] it would rely on an independent third-party investigator to investigate any complaints, and to provide a report regarding the alleged breach as well as recommending proportional remedies where those expectations are not met.”
From there, Vagelatos threw it open to council members to raise questions.
Some councilors rallied around concerns with the reporting process of a complaint, with Vagelatos responding to queries from Councillor Jen Ford to explain that even if a councillor was not found in breach of the code of conduct, a report would still be made public if an investigation was carried out.
Ford’s line of questioning, which hinged on concerns about disproven accusations going to a public forum becoming a “circus” in and of themselves, were picked up and shared by Coun. Jessie Morden, who pressed Vagelatos on the issue.
“I think in some cases a council member may want it to be known that, yes, there was an investigation, but [they weren’t] found to be at fault,” said Vagelatos, who added a report clearing someone’s name could also be regarded as a learning tool for other council members, members of the public, and candidates for public office.
Her argument didn’t sway Ford, who said whether or not an accusation is vexatious, a report clearing someone of any wrongdoing is still worn by the accused.
The RMOW’s chief administrative officer Ginny Cullen noted it would not be a fully detailed report of the alleged misconduct or investigation that is made public, but a summary.
General manager of community engagement and cultural services, Karen Elliott, pointed out accusations are often in the public realm from the outset.
“One of the things we’re seeing across the province is that vexatious complaints from council member to council member often start in the public domain, and are shared on social media quite broadly, and then are brought in through the code of conduct complaint process,” she said.
“It is certainly your discretion to put forward the code of conduct that you want, but one thing to remember is that sometimes, the complaint is made very publicly by a councillor, and the only way to clear that person’s name is for the investigator to publish a report.”
Morden continued to press the issue, arguing a public accusation being taken into a formal process would likely cause interest to die down—but to return to it later would resurrect interest.
“We all know that things pass and people take up new hobbies—so they don’t pay attention to that story, and then it comes out in public [again], then it’s being worn by that council member again … it’s just being perpetuated,” she said.
Morden suggested if a council member was found not in breach, then council itself have a role in deciding if it should release the report, because otherwise, “once it goes public, anybody and their mother can make their own assumptions on that council member.”
Ford dipped back in to add another two cents.
“I would take it one step further and say if there was no breach, and the investigator said no breach has been found … The council member who has been accused can choose to make it public or not based on their decision … There’s no advantage to someone saying ‘I’ve been accused of this and I’ve been cleared of all charges’—it doesn’t really help.”
Coun. Arthur De Jong, when he spoke, indicated he was in agreement with Ford and Morden’s line of thinking.
“If our hands are clean, being dragged through the public mud of perception is not exactly a recruitment tool for public office,” he said.
While he commended staff’s work, De Jong relayed general discomfort with the entire process of forming a new code of conduct, adding he believes the province should have applied municipal codes of conduct from above.
“I do find this process uncomfortable, hence I am quiet,” he said. “My expectation is that the province, through UBCM, hands a rulebook to everyone and we play by it … Here I find I have to be both a player and a referee. I have never been comfortable with that.”
Other questions touched on remuneration being tied to remedial actions in the case of breaches of the bylaw; the process for appointing an independent investigator and how much it will cost (between $10,000 and $40,000, depending on the complexity of cases); and how much it would cost to reimburse a council that chose to have legal representation through the process (up to $10,000).
Towards the end of discussions, following remarks from Coun. Ralph Forsyth about sunk-cost fallacy and potentially leaving the existing code of conduct in place, Cullen warned against getting lost in the weeds.
“At the end of the day, the highest-ranking piece is that everyone has a common understanding of the conduct and you hold each other accountable … what [staff] have done is an improvement on the existing code, and I think that should be taken into account,” she said.
Elliott, who served as the previous mayor of Squamish, also jumped in to stress the importance of having a robust code of conduct.
“I can say from experience that there is a leap of faith in raising your hand and voting for your code of conduct, because you don’t know how it’s going to work until you have to put it into practice … but I think having the comfort of knowing that there is a process and knowing that everyone’s clear on their roles is a huge advantage,” she said.
Council voted unanimously to direct staff to bring the code of conduct to a regular council meeting with amendments.
The full meeting can be watched on the RMOW website.
