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09-31COUNTY OF ELGIN By -Law No. 09 -31 "BEING A BY- LAW TO REAPPOINT JGM CONSULTING AS THE INVESTIGATOR PURSUANT TO SECTIONS 8, 9, 10 AND 239.1 OF THE MUNICIPAL ACT, 2001, S.O. 2001, C.25, AS AMENDED AND TO AMEND BY -LAW NO. 08 -30" WHEREAS effective January 1, 2008, pursuant to Section 239.1 of the Municipal Act, 2001, S.O. 2001, c.25, as amended, a person may request an investigation of whether a municipality or local board has complied with Section 239 of the Municipal Act, 2001 as amended, or a procedural by -law under subsection 238 (2) in respect of a meeting or part of a meeting that was closed to the public; and WHEREAS by By -Law No. 07 -38 Council did appoint JGM Consulting as the Investigator to investigate all requests on behalf of the Municipality and its Local Boards for a one year term commencing January 1, 2008; and WHEREAS Council deemed it advisable to reappoint JGM Consulting as the Investigator for an additional one year term commencing January 1, 2009 under certain terms and conditions through amending By -Law No. 08 -30; and WHEREAS Council has deemed it advisable to reappoint JGM Consulting as the Investigator for a further two years according to the same terms and conditions as agreed to in amending By -Law No. 08 -30; and NOW THEREFORE the Municipal Council of the Corporation of the County of Elgin hereby enacts as follows: 1. THAT JGM Consulting is hereby reappointed as the independent Investigator to investigate in accordance with the legislation all requests for an investigation of the Council and committees of the Municipality and the local boards and their committees of the Municipality for an additional two -year term commencing January 1, 2010. 2. THAT Schedule "B as amended by By -Law No. 08 -30 and further amended by By -Law No. 09 -31 be approved. 3. THAT this By -Law shall come into force and take effect on January 1, 2010. READ A FIRST, SECOND AND THIRD TIME AND FINALLY PASSED THIS 10 DAY OF NOVEMBER 2009. Chief Administrative Officer. Donald,' Graham Warwick, Warden. PLEASE FORWARD COMPLETED FORMS TO: 2 SCHEDULE "A" By -Law No. 07 -38 COMPLAINT FORM MUNICIPAL INVESTIGATION IN ACCORDANCE WITH Section 239 of the Municipal Act 2001 (As Amended) A FEE OF $25.00 MUST ACCOMPANY THIS FORM PRIOR TO BEING PROCESSED. John Maddox JGM CONSULTING #42 99 Edgevalley Road London, Ontario N5Y 5N1 3 COMPLAINT FORM FOR MUNICIPAL INVESTIGATION Section 239 Municipal Act 2001 (As Amended) COMPLAINANT `S NAME ADDRESS TELEPHONE E -MAIL HOME WORK CAN YOUR IDENTITY BE REVEALED DURING THE INVESTIGATION? YES NO PERSONAL INFORMATION IS COLLECTED UNDER THE AUTHORITY OF SECTION 239 OF THE MUNICIPAL ACT 2001 (AS AMENDED) AND WILL BE USED BY THE MUNICIPAL INVESTIGATOR TO CARRY OUT AN INVESTIGATION UNDER THE ACT. NAME OF MUNICIPALITY DATE OF CLOSED MEETING MUNICIPAL CONTACT NAME TELEPHONE BACKGROUND This should provide as much information as is required to explain the nature and background of the particular occurrence. (i.e.) Timing; Municipal Contact; Municipal Explanation. ACTION Activities that the complainant has undertaken to resolve the matter. SUMMARY COMMENTS Date of signature 4 Signature of Complainant AND: WHEREAS: 5 SCHEDULE "B" By-Law No. 09-31 RENEWAL AGREEMENT FOR MUNICIPAL INVESTIGATOR THIS AGREEMENT made as of the 1 day of January, 2010. BETWEEN: CORPORATION OF THE (Hereinafter referred to as the "Municipality") NOW THEREFORE the parties agree as follows: OF THE FIRST PART JGM CONSULTING (Hereinafter referred to as the "Independent Contractor") OF THE SECOND PART (A) Section 239.2 of the Municipal Act, 2001, S.O. 2001, c.25 (the "Act"), when proclaimed in force, authorizes municipalities to appoint an investigator to investigate in an independent manner any complaint as to whether the Municipality has complied with the Act or a Municipal procedural by-law in respect of a meeting or part of a meeting that was closed to the public and to report on the investigation; (B) In appointing an investigator and in assigning powers and duties to him, a municipality is to have regard to, among other things: i) the investigators independence and impartiality; ii) confidentiality with respect to the investigator's activities; iii) the credibility of the investigator's investigative process; (C) The Municipality is satisfied that the Independent Contractor has the skills and ability to meet the foregoing criteria. 1. Services The Municipality hereby retains and appoints the Independent Contractor as an Investigator for the purposes of Section 239.2(1) of the Act and the Independent Contractor agrees to provide such services for and at the request of the Municipality and accepts such appointment. The Independent Contractor confirms that services under this agreement will be carried out by John G. Maddox except as otherwise delegated by John G. Maddox. 2. Duties The duties of the Independent Contractor shall be: i) to conduct investigations from time to time as requested by the Municipality upon receipt of a complaint ("Complaint") in respect of meetings or part of meetings that are closed to the public to determine compliance with the Act or the Municipal procedural by-law and to report on the results of such investigations;. ii) in conducting such investigations, to have regard to the importance of the matters listed above in recital (B); iii) to proceed without undue delay and with due diligence to investigate a Complaint; iv) to conduct each investigation in private; v) to hear or obtain information from such persons as the Independent Contractor thinks fit and to make such inquiries as he thinks fit; vi) to provide an opportunity to the Municipality or any person that may be adversely affected by a proposed report of the Independent Contractor, the opportunity to make representations respecting such report or recommendation; 6 vii) to preserve confidentiality and secrecy with respect to all matters that come to his knowledge in the course of performing duties hereunder, save and except disclosure of such matters as in the Independent Contractor's opinion ought to be disclosed in order to establish grounds for his conclusions and recommendations; viii) after making an investigation, to render his opinion as to whether or not the meeting or part of the meeting that was the subject matter of the investigation appears to have been closed to the public contrary to the Act or Municipal procedural by-law and, in either case, the Investigator shall report his opinion and the reasons for it to the Municipality and shall make such recommendations as he thinks fit. In performing such duties, the Independent Contractor shall have the powers set out in Subsection 223.13(6) and Sections 223.14 to 223.18 of the Act, copies of which are attached hereto as Appendix "A". 3. Joint Retainer The Independent Contractor acknowledges that the Independent Contractor is appointed as an Investigator for each of the participating member municipalities within the County of Elgin ("Included Municipalities"), as shown on Appendix "B" to this Agreement, together with payment of the Additional Fee defined below. Each Included Municipality shall enter into separate agreements with the Independent Contractor. 4. Fees a) Annual Retainer The Municipality shall pay to the Independent Contractor on or before the commencement date ONE THOUSAND DOLLARS ($1,000.00) plus applicable taxes. In order to add the Included Municipalities to the duties of the Independent Contractor, an additional fee of THREE HUNDRED ($300.00) for each Included Municipality shall be paid by the County of Elgin. b) Hourly Rate In addition, the Independent Contractor shall be paid a fee of ONE HUNDRED DOLLARS ($100.00) per hour plus applicable taxes during such time the Independent Contractor is performing his duties hereunder. The Independent Contractor agrees such rate shall be charged only for such time that the Independent Contractor is actively investigating a Complaint and preparing and presenting his report with respect thereto. The Independent Contractor shall not charge for travel time. The Independent Contractor is entitled to be reimbursed for other reasonable receipted expenses related to his duties, including food and hotel costs, car rental, kilometre rate at the respective municipal rate or railway tickets. c) Responsibility for Payment The Independent Contractor further covenants and agrees that his hourly fee and related expenses hereunder shall be paid by the Municipality against whom the Complaint is made and which initiated the investigation. The Municipality agrees to be responsible for such fees and expenses and, notwithstanding the joint retainer, the Independent Contractor shall not hold the other Included Municipalities responsible for such payment obligation. The Independent Contractor shall invoice the applicable Municipality upon completion of his report. 5. Term The term of this Agreement ("Term") is for a fixed two (2) year term commencing the effective date of the execution of this Agreement and ending on the first anniversary date thereof unless renewed and/or extended by agreement of all parties. The Independent Contractor or the Municipality shall give at least thirty (30) days written notice prior to the end of the Term of its intent not to renew this Agreement if such renewal were to be available. 6. Taxes All amounts payable to the Independent Contractor shall be paid without deduction. The Independent Contractor shall be responsible for any contributions imposed or required under employment insurance, health tax, social insurance, income tax law, Worker's Compensation (if elected to enrol), pension with respect to any amounts paid to the Independent Contractor. The Municipality assumes no obligation or liability as between the parties to this Agreement to deduct or remit any statutory or government remittances. 7 7 Independent Contractor The Independent Contractor is a contractor independent of the Municipality. Nothing herein shall be interpreted to create a relationship of employer/employee, partnership, franchise, agency or joint venture or other like arrangement. 8. Delegation In the event more than one Complaint is made at any one time requiring more than one investigation, the Independent Contractor may determine that it is necessary to delegate some or all of his powers and duties, then he may do so in writing to any person other than a member of council, provided that the person to whom such delegation is made agrees in writing to be governed by the same duties of secrecy as the Independent Contractor and to abide by the terms and conditions of this Agreement. Such person shall always be under the supervision and direction of the Independent Contractor. Such delegation shall not be to a member of council or staff of any Municipality and shall not result in any additional costs or fees to the Municipality. Invoices shall be rendered by the Independent Contractor and payment made to the Independent Contractor and the Independent Contractor shall otherwise be responsible for the fees and disbursements of any of his delegates. 9. Binding This Agreement shall inure to the benefit of and bind the parties and their respective heirs, successors and permitted assigns. 10. Indemnification The Municipality agrees to indemnify and save harmless the Independent Contractor, its agents and assigns, from and against any and all liabilities, losses, suits, claims, demands, damages, expenses, costs (including all legal costs), fines and actions of any kind or nature whatsoever arising out of or in connection with the Independent Contractor's provision of services and carrying out of its duties including, but not limited to, any alleged breach of this agreement, any procedural defect or other breach of relevant statutory provisions. 11. Entire Agreement This Agreement contains the entire agreement between the parties and supersedes all previous negotiations, understandings and agreements, verbal or written with respect to any matters referred to in this agreement. IN WITNESS HEREOF, each of the parties hereto have set its hand and seal as of this day of 2010. SIGNED, SEALED AND DELIVERED THE CORPORATION OF THE COUNTY OF ELGIN Warden Chief Administrative Officer The Independent Contractor hereby accepts and agrees to the terms and conditions herein contained. Witness JGM CONSULTING John G. Maddox for JGM Consulting 8 APPENDIX "A" By -Law No. 07 -38 In performing Investigator duties, the Independent Contractor shall have the powers set out in Subsection 223.13(6) and Sections 223.14 to 223.18 of the Act, as follows: Ombudsman Powers paramount 223.13(6) The powers conferred on the Ombudsman under this Part may be exercised despite any provision in any Act to the effect that any such decision, recommendation, act or omission is final, or that no appeal lies in respect of them, or that no proceeding or decision of the person or organization whose decision, recommendation, act or omission it is shall be challenged, reviewed, quashed or called in question. Investigation 223.14 (1) Every investigation by the Ombudsman shall be conducted in private. Opportunity to make representations (2) The Ombudsman may hear or obtain information from such persons as he or she thinks fit, and may make such inquiries as he or she thinks fit and it is not necessary for the Ombudsman to hold any hearing and no person is entitled as of right to be heard by the Ombudsman, but if at any time during the course of an investigation it appears to the Ombudsman that there may be sufficient grounds for him or her to make any report or recommendation that may adversely affect the municipality, a local board, a municipally controlled corporation or any other person, the Ombudsman shall give him, her or it an opportunity to make representations respecting the adverse report or recommendation, either personally or by counsel. Application of Ombudsman Act (3) Section 19 of the Ombudsman Act applies to the exercise of powers and the performance of duties by the Ombudsman under this Part. Same (4) For the purposes of subsection (3), references in section 19 of the Ombudsman Act to "any governmental organization "the Freedom of Information and Protection of Privacy Act" and "the Public Service of Ontario Act, 2006" are deemed to be references to "the municipality, a local board or a municipally controlled corporation "the Municipal Freedom of Information and Protection of Privacy Act" and "this Act respectively. Duty of confidentiality 223.15 (1) Subject to subsection (2), the Ombudsman and every person acting under the instructions of the Ombudsman shall preserve secrecy with respect to all matters that come to his or her knowledge in the course of his or her duties under this Part. Disclosure (2) The Ombudsman may disclose in any report made by him or her under this Part such matters as in the Ombudsman's opinion ought to be disclosed in order to establish grounds for his or her conclusions and recommendations. Section prevails (3) This section prevails over the Municipal Freedom of Information and Protection of Privacy Act. No review, etc. 223.16 No proceeding of the Ombudsman under this Part shall be held bad for want of form, and, except on the ground of lack of jurisdiction, no proceeding or decision of the Ombudsman is liable to be challenged, reviewed, quashed or called in question in any court. 9 Testimony 223.17 (1) The Ombudsman and any person acting under the instructions of the Ombudsman shall not be called to give evidence in any court, or in any proceedings of a judicial nature, in respect of anything coming to his or her knowledge in the exercise of his or her functions under this Part. Same (2) Anything said or any information supplied or any document or thing produced by any person in the course of any investigation by or proceedings before the Ombudsman under this Part is privileged in the same manner as if the inquiry or proceedings were proceedings in a court. Effect on other rights, etc. 223.18 The rights, remedies, powers, duties and procedures established under sections 223.13 to 223.17 are in addition to the provisions of any other Act or rule of law under which any remedy or right of appeal or objection is provided for any person, or any procedure is provided for the inquiry into or investigation of any matter, and nothing in this Part limits or affects any such remedy or right of appeal or objection or procedure. 10 APPENDIX "B" By -Law No. 07 -38 INCLUDED MUNICIPALITIES The Included Municipalities under this Agreement shall be: The Corporation of the Municipality of Bayham The Corporation of the Municipality of Central Elgin The Corporation of the Municipality of Dutton /Dunwich The Corporation of the Municipality of West Elgin The Corporation of the Town of Aylmer The Corporation of the Township of Malahide The Corporation of the Township of Southwold