N.B. codes of conduct allow for degree of council secrecy not possible under N.S. rules

CBC

a day ago

Under New Brunswick rules, the public can be kept in the dark when their local officials face discipline — an approach far less open than one adopted next door in Nova Scotia.
In Strait Shores, in eastern New Brunswick, a councillor was temporarily suspended after an investigation that was kept from the public and was later found to have violated due process.
In the northern municipality of Heron Bay, which includes Dalhousie and Charlo, council suspended Mayor Normand Pelletier and, as Radio-Canada reported, has refused to publicly say why.
And in Sunbury-York South, the municipality has not publicly shared details of why Mayor David Hayward was suspended at a recent meeting.
Questions about due process have also arisen in Grand Lake, where a councillor was suspended in April following an investigation that never let her respond to the allegations she faced.
But if those four municipalities had been in Nova Scotia, recent legislation would have required details to be made public, following a clearly outlined due process for everyone involved in the investigations.
N.B. code has ambiguity, expert says
Last October, Nova Scotia adopted a new code of conduct for municipal elected officials, which acts as a blanket policy for all 49 municipalities in the province.
That's different from New Brunswick, where the Local Governance Act gives municipalities some guidelines that must be in their code of conduct but leaves it up to each council to create and implement their own version.
"The Nova Scotia code is clearer and avoids ambiguity like the one we have in New Brunswick," said André Daigle, a municipal law lawyer in Dieppe who's been working with municipalities and local planning commissions for more than 30 years.
Daigle said municipalities are left "in a vulnerable state because of the void that they have to fill themselves with the code of conduct."
Because of this, there are minor variations among the codes of New Brunswick councils.
The Nova Scotia code clocks in at 3,971 words, New Brunswick's has 898 words. Nova Scotia also mandates regular training on the new code for all elected officials, which is something the New Brunswick Union of Municipalities had called for.
For procedural fairness, the Nova Scotia code requires that a council member who is the subject of the complaint be given an opportunity to review and respond to information in an investigator's report. Details about who the investigator is and their contact must also be public.
And when imposing a sanction on a councillor, council must consider whether the member's contravention was intentional, a first-time offence, and whether the member has taken any steps to remedy the issue.
"And if they turn their mind to those factors, the hope, from what I can see, is that the sanctions will flow better," Daigle said. "And they'll be more measured if you take those things under consideration."
N.S. code includes clear outlines for transparency
Transparency is also a key focus of the Nova Scotia code. Once a council has acted on a complaint, it must publicly share what specific rule was broken, the investigator's recommendations and what sanctions were imposed.
In New Brunswick, a council must only make a report available to the complainant and the affected member of council. The council must review the report at a meeting and vote on a next step, but the meeting is allowed to be closed to the public if council deems the matter confidential.
"We're not really sure how to handle those investigations and at what point it becomes public and what details come out in public," Daigle said.
By comparison, he described the Nova Scotia regulation as having "a fantastic framework."
He said the New Brunswick code should speak more to the process of a code of conduct investigation. Currently, the code says that there must be "a fair and impartial process for investigation."
"What is a fair and impartial process for an investigation? Don't leave municipalities guessing how to draft these. We have 72 municipalities, you're going to have 72 versions of the bylaw."
CBC News requested an interview with the Department of Local Government but one was not provided.
When asked why New Brunswick doesn't have requirements similar to Nova Scotia's, a spokesperson did not answer the question and instead said it is up to the discretion of each province and territory to establish regulations "as they best see fit."
Local Government Minister Aaron Kennedy told CBC News in April that it's best for councils to handle their disciplinary process with little interference from Fredericton.
'We need to be held to a certain standard,' N.S. official says
Yarmouth Mayor Pam Mood, the president of the Nova Scotia Federation of Municipalities, said the association spent two years helping draft the new legislation.
She said it was important the code of conduct be the same across the province because it was confusing to have something be outlawed in one municipality but allowed in a neighbouring municipality.
"We're here to serve the public," Mood said.
"And so sometimes we need help, not because everybody's dishonest, but because we need to know what the rules are and where we can go."
Before the new policy was enacted, Mood said, she would hear about councils having code of conduct violations "all the time."
"You have people screaming at each other … at a table where they were elected together to be a team, treating each other like they're the enemy," she said.
"It's childish and there's no need for it. You know, that type of behaviour is not power. It's exactly the opposite."
As for the transparency provisions of the new code, Mood said the public deserves to know what their elected officials are doing.
"Tell us if somebody's misbehaving, did I elect that person?" she said.