07-38
After conducting an investigation, the Investigator or the delegate shall report to the
municipality or in the case of a local board, to the local board and the Municipality.
The report shall include an opinion and the reasons for it and may make such
7.
6
If at any time during the course of an investigation it appears to the Investigator or
the delegate that there may be sufficient grounds for a report or recommendation
that may adversely affect the municipality, a local board or any other person, the
Investigator or the delegate shall give him, her or it an opportunity to make
representations respecting the adverse report or recommendation, either personally
or by counsel.
Subject to Section 6, no person is entitled as of right to be heard by the Investigator
or the delegate.
5
The Investigator or the delegate may hear or obtain information from such persons
as the Investigator or the delegate thinks fit, and may make such inquiries as
Investigator or the delegate thinks fit and it is not necessary for the Investigator or
the delegate to hold any hearing.
4.
JGM Consulting or its delegate shall have, in carrying out the functions of
Investigator, regard to, among other matters, the importance of the Investigator's
credibility, the independence, impartiality and confidentiality with respect to the
investigative process.
3
The appointment shall be for an initial term of one year commencing the first day of
January 2008 and ending on December 31, 2008 and may be renewed for
subsequent terms.
2
THAT pursuant to Sections 8,9, 10 and 239.2 of the Municipal Act, 2001, S.O.
2001, c.25, as amended, (the "Act") Council hereby appoints JGM Consulting 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 the purposes of this
By-Law, "committee" and "local board" shall have the meaning as defined in
Section 238 of the Act.
1
NOW THEREFORE the Municipal Council of the Corporation of the County of Elgin
hereby enacts as follows:
WHEREAS Section 391.(3) and (4) of the Municipal Act, 2001, S.O. 2001, c.25, as
amended, authorizes a municipality to impose a fee or charge including costs incurred by
the municipality or local board related to administration whether or not it is mandatory for
the municipality to provide or do the service or activity.
WHEREAS Council deems it desirable to 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;
WHEREAS effective January 1, 2008, pursuant to Section 239.1 of the Municipal
Act, 2001, S.O. 2001, c.25, as amended, permits a person to 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
S.O. 2001
C.25. AS AMENDED"
PURSUANT TO SECTIONS 8. 9
BEING A BY LAW TO APPOINT JGM CONSULTING AS THE INVESTIGATOR
10 AND 239.1
OF THE MUNICIPAL ACT. 2001
By-Law No. 07-38
COUNTY OF ELGIN
nald,
Chief Administrative Officer.
READ A FIRST, SECOND AND THIRD TIME AND FINALLY PASSED THIS
DECEMBER 2007
This By-law shall come into force and take effect
thereof.
13TH DAY OF
10
mmediately upon the final passing
An agreement between the Municipality and JGM Consulting for investigative
services, as shown on Schedule "B" attached hereto and forming part of this by-law
is hereby approved and the Warden and the Chief Administrative Officer are hereby
authorized to execute the agreement on behalf of the Municipality.
9
Every request for an investigation shall be initiated through the submission of a
"Municipal Investigation Complaint Form" ("Complaint Form") in the form attached
as Schedule "A" hereto and forming part of this By-Law. The said Complaint Form
shall be made available to the public through the Clerk's Office. A completed
Complaint Form shall be submitted to either the Clerk's Office or directly to the
Closed Meeting Investigator and shall be accompanied by payment of an
administrative/processing fee of $25.00, payable in cash or bank draft to the
Corporation of the County of Elgin. A completed Complaint Form will not be
accepted unless accompanied by payment of the required administrative/
processing fee. In the event that the closed meeting investigator concludes that
either an item discussed in a closed meeting ought not to have been discussed in
such closed meeting or that Council did not act in accordance with its Procedural
By-Law, then the said administrative/processing fee shall be refunded to the
submitting Complainant.
8
recommendations as the Investigator or the delegate deems fit. The report shall be
included on the next agenda of the Council, or in the case of a Local Board, the
Council and the Local Board agendas, immediately following receipt of the report.
2
3
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.
PLEASE FORWARD COMPLETED FORMS TO:
John Maddox
JGM CONSULTING
#42 - 99 Edgevalley Road
London, Ontario N5Y 5Nl
BACKGROUND This should provide as much information as is required to explain the nature and background of
the articular occurrence. i.e. Timina; Murrici al Contact; Murrici al E~anation.
ACTION I Activities that the complainant has undertaken to resolve the matter.
NAME OF MUNICIPALITY
DATE OF CLOSED MEETING
MUNICIPAL CONTACT NAME
TELEPHONE
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.
COMPLAINANT'S
NAME
ADDRESS
TELEPHONE HOME I 1 WORK I
E-MAIL
4
COMPLAINT FORM FOR MUNICIP AL INVESTIGATION
Section 239 - Municipal Act 2001
(As Amended)
Date of signature
SUMMARY / COMMENTS
Signature of Complainant
5
vi)
iv)
v)
Quties - The duties of the Independent Contractor shall be:
) 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;.
in conducting such investigations, to have regard to the importance of the
matters listed above in recital (8);
to proceed without undue delay and with due diligence to investigate a
Complaint;
to conduct each investigation in private;
to hear or obtain information from such persons as the Independent
Contractor thinks fit and to make such inquiries as he thinks fit;
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;
)
)
2
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.
1
NOW THEREFORE
The Municipality is satisfied that the Independent
ability to meet the foregoing criteria.
the parties agree as followS
(C)
Contractor has the skills and
n appointing an investigator and in assigning powers and duties
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;
(B)
to him
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;
a
(A)
WHEREAS
JGM CONSULTING
(Hereinafter referred to as the
OF THE SECOND PART
ndependent
Contractor")
AND
BETWEEN
CORPORATION OF THE
(Hereinafter referred to as the
OF THE FIRST PART
Municipality")
THIS AGREEMENT made as of the
day of
2007
AGREEMENT FOR MUNICIPAL INVESTIGATOR
SCHEDULE "B"
By-Law No. 07-38
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.
6
Term - The term of this Agreement ("Term") is for a fixed one (1) 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.
5
Fees
a) Annual Retainer - The Municipality shall pay to the Independent
Contractor on or before the commencement date TWO THOUSAND
FIVE HUNDRED DOLLARS ($2,500.00) 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) Hourlv Rate - In addition, the Independent Contractor shall be paid a fee
of SEVENTY-FIVE DOLLARS ($75.00) 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) Responsibilitv for Pavment - 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.
4
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.
3
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".
viii)
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;
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.
7
Witness
John G. Maddox for JGM Consuilting
JGM CONSULTING
The Independent
herein contained
Contractor
hereby accepts and agrees
to
the
terms and conditions
Warden
THE CORPORATION OF
THE COUNTY OF ELGIN
Chief Administrative Officer
SIGNED. SEALED AND DELIVERED
N WITNESS HEREOF, each of the parties hereto have set its hand and seal as of this
day of, 2007.
Entire Aqreement - 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.
11
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.
10
Bindlnq - This Agreement shal nure to the benefit of and bind
their respective heirs, successors and permitted assigns
9
the parties and
Deleqation n the event more than one Complaint is made at anyone 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 councilor 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 his
delegates.
8
7
ndependent Contractor - The Independent Contractor is a contractor
ndependent 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
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.
Section prevails
(3) This section prevails over the Municipal Freedom of Information and Protection of
Privacy Act.
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.
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.
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
Ad' 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.
Application of Ombudsman Act
(3) Section 19 of the Ombudsman Act applies to the exercise of
performance of duties by the Ombudsman under this Part.
powers
and
the
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.
nvestigation
223.14 (1) Every investigation by the Ombudsman shall be conducted in private
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.
n 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:
APPENDIX "A"
By-Law No. 07-38
9
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.
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.
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
10
11
APPENDIX "B"
By-Law No. 07-38
NCLUDED 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