Loyalist Council votes to further investigate Code of Conduct breach by Porter

Loyalist Township Council voted Monday, Jun 28, 2021 to pursue further investigation into the actions of Ward 3 Councillor Penny Porter, who was found to be in conflict of interest in contravention of the Municipal Conflict of Interest Act.

In his report to Council, Loyalist Township’s Integrity Commissioner (IC) John Mascarin wrote of Porter, “The Councillor owes an ethical duty to her constituents, the Township, and the public at large to avoid conflicts of interest by refraining from dealing with matters involving her own financial interest. In this instance, she did not. Our report makes very clear that the Councillor contravened the MCIA.”

During his presentation, Mascarin made it plain that “Councillor Porter’s proposed development on Emma Street [in Odessa] unequivocally stood to benefit from the proposed modifications to the Official Plan.”

Mascarin recommended that the report be published on the Township website, stating, “Publication of this report serves to express condemnation of her conduct on behalf of the public interest in ethical municipal government. In our view, the appropriate response to the Councillor’s contravention is the ‘daylighting’ of the issue, not an application to a judge.”

After receiving a report from Mascarin indicating Porter’s misconduct, Councillor Nathan Townend moved that Council receive the Integrity Commissioner’s Report of Findings and his decision not to make an application to a judge but instead post a copy of the Report on the Township’s website.

He further moved that Council request the IC to undertake an inquiry regarding contravention of the Code of Conduct, by Porter. Explaining that, while Council could accept the report, post it publicly, and then let the matter rest, “This mechanism is really the only option council has to be able to acquire an objective, legal opinion about what a measured response ought to be. This option presupposes that the seriousness of this situation demands an extra-ordinary response,” Townend said.

He continued, “We were elected to work together for the public good, and we promised ourselves and the electorate that we would hold each other accountable. When we passed the Code of Conduct by-law it became, in effect, a collective agreement between the seven of us that we will hold ourselves to the highest standards of accountability. If we do nothing, then the code means nothing.”

“For these reasons,” Townend concluded, “I believe the only responsible, ethical choice is for council to take proactive leadership in resolving to request a code of conduct investigation.

Deputy Mayor Jim Hegadorn added, “This is the only process that is available for us to do a review, to be able to see if there are options or what options should be taken. And I’m not making a decision. No one can make a decision until we get the right recommendations and maybe the recommendations will be virtually nothing. But I think that we owe it to the public to follow the process of receiving the recommendations, and then we will have the opportunity to review at that time.”

For her part Councillor Porter said she was, “Really shocked and dismayed by the report.”

She explained, “I’ve always been very diligent and very careful and, and very conscientious of declaring conflict of interest” and “the reason for the shock was, basically because I did do my due diligence.”

Porter further explained that she had gotten legal advice from two different lawyers, “So I took that extra step. And I wanted to be sure that I was on solid ground, but I was not acting in any way in conflict or dishonor in any shape, way, or form.”

“This policy was something that I felt we needed to change due to the… I mean, every year, we hear a presentation about affordable housing, my intentions were honorable in this,” Porter continued.

“I was drawing on my experience. And that’s all I was doing was drawing on my experiences. Yes, I had a meeting with the Township in regards to something that I was contemplating. But I also understood that it was a policy, we’re talking about the fiscal plan. And I also did seek out not one, but two legal opinions to ensure I wasn’t going to be contradicting things in the Act and to be sure that I was acting with integrity. And that’s what I did and as I said before, my intentions were not to benefit from this, but have all of the municipality benefit from it, and to react to what we have been asked for so many times through presentations.”

She finished, “I don’t know what any, any one of us could do more than that. But act, you know, according to the advice that we get.”

Mayor Ric Bresee asked IC Mascarin for clarification on Porter’s stated frustration. “When I was a new councillor, I took a training course in the Municipal Conflict of Interest Act, as it was. I know what has changed since then. But one of the things that I was told at the time, was that if a councillor had a question about whether they were in conflict or not, they got an opinion from a qualified lawyer on that. And if they acted on that advice and then later were found to be in contravention, despite the advice from counsel… That was from the judicial position rationale for leniency. Could you comment on on that?”

The IC explained that, “There used to be a provision in the Municipal Act that said that you would not be removed from office if you had committed a contravention of the Act, but you did so by a good faith, error and judgment, honest error and judgment.”  

However, he pointed out, “The Act was changed. Integrity commissioners were given the authority, the express authority to provide written advice to members of council. And one of the things that they could provide written advice on was on the MCIA. So I submit to you that there was really no reason for Councillor Porter to reach out to other lawyers, when she could have reached out to the Integrity Commissioner, and gotten our advice that would have been paid for by the municipality.”

The vote to ask the IC to conduct a code of conduct investigation was unanimous, with the exception of Porter who abstained, declaring a conflict of interest.