Tantramar council is considering changes to its code of conduct bylaw, including a new penalty for councillors found to be in violation by their peers: outright suspension from their duties and authority under the Local Governance Act.
Under Tantramar’s current code of conduct bylaw, councillors can face reprimands ranging from being required to issue an apology or take training, to being suspended from appointed positions on committees or being docked pay. But if revisions currently proposed are passed, councillors will also face outright suspension from their council duties altogether, for a period of up to 90 days.
The revisions are being brought in due to a new regulation passed by the provincial government in July 2024, which lays out new requirements for municipal code of conduct bylaws, including the addition of a detailed complaints process. The new regulation also offers up a menu of corrective actions that may be included in a bylaw.
During council’s committee of the whole meeting on February 24, Tantramar Clerk Donna Beal told councillors the revisions proposed were all required by the new regulation. “This is not the choosing of staff, not necessarily the choosing of council,” said Beal. “This is law within New Brunswick.”
While several sections of the new regulations include the word “shall”, the section outlining corrective actions uses the word “may”. There are also sections of the proposed Tantramar by-law that differ from the provincial regulation, such as a section requiring council to review a report “at its next meeting after receiving a report”. Under the proposed Tantramar bylaw, council will be required to call “an in-camera meeting” within a month to review a final report.
Councillors Debbie Wiggins-Colwell and Bruce Phinney have both been reprimanded under previous code of conduct bylaws, and both opposed the changes during the council discussion. Wiggins-Colwell said she was concerned with the potential for weaponization and misuse of the code of conduct, and also that it may impinge on Charter Rights to freedom of expression.
Wiggins-Colwell said she would like to have a lawyer specializing in the Charter of Rights, or a political science professor “to explain how implementing this would not infringe upon our freedom of speech or expression, which now more than ever we need to protect.”
Beale later responded, “what some professional at a university may think about it is really here nor there, when this is a requirement that municipalities across New Brunswick have to incorporate in a code of conduct.”
CHMA asked Mount Allison politics professor Geoff Martin about the effect of code of conduct bylaws in municipal politics, and Martin said that while he sees them as a necessity, they come with risks.
“In the old days, there was probably more outright hostility and uncordial kind of remarks, and even sometimes threats of violence, and that had to be addressed and eliminated,” says Martin.
“But it’s also true that sometimes these policies are written generally enough that they can be kind of weaponized in a sense,” says Martin. “Sometimes they can also be read to undermine the independence of councillors or their independence from the municipal corporation.”
“Sometimes these codes of conduct may be used to accuse someone of undermining the council as a whole,” says Martin, “or retaliating against someone for rocking the boat… that’s the risk of these things.”
Ultimately, says Martin, municipal councils should be places where disagreement is not only allowed, but welcomed and valued.
“Council shouldn’t necessarily be like a some kind of provincial cabinet or executive council where all decisions are made in closed doors and there’s only ever kind of unanimity and no real debate in public,” says Martin. “People like to see debates among councillors in public, and they like to see their own values being presented by someone, so it’s not just everyone in lockstep.”
At February’s committee of the whole meeting, Mayor Andrew Black tried to assure councillors that impinging on rights was not the intent of the bylaw.
“I want to make it clear that the code of conduct does not muzzle councillors,” said Black. “It does not keep you from saying what you want to say. That has nothing to do with this by law whatsoever. What it does do is make sure that you don’t say what you shouldn’t say, among other things.”
Black said the municipality needs protections “from a risk mitigation level”. In cases of inflammatory or misleading comments, “the municipality could be on the hook for a considerable amount of money through legal litigation,” said Black.
Councillor Bruce Phinney was not easily convinced, and remained concerned about the potential for misunderstandings to lead to problems with the application of the bylaw.
“We can all interpret it our own way,” said Phinney. “I could say, ‘well, I said this here, but, you know, it’s nothing serious or whatever.’ But then they can say, ‘Oh, well no, you were just terrible.’”
“There’s just more control over all of us right now, and if it’s coming from the [department of] local government, then the government’s doing it,” said Phinney.
“You can say truthful things, and you can say factual information,” responded Black. “You can say real things. What you can’t say is what’s in [the bylaw], which is, you know, you have to act with integrity, with honesty. You can’t be misleading. There can’t be misinformation.”
“That can still be interpreted differently by you or me or anybody else,” replied Phinney.
“True,” said Black.
A number of councillors spoke in favour of the bylaw changes, noting that increased detail of the complaints process would be helpful. Councillor Allison Butcher said she felt the by-law was there to protect councillors, by laying out the rules.
“We can read through this, know exactly how it all works,” said Butcher. “And I also like that if and when there is a complaint or an issue, it is very clear and gives more options for what to do to remedy a situation. So I look at this as a very positive thing, and I think it’s a step forward from what we had since amalgamation.”
