Should Hamilton's Integrity Commissioner Also Provide Legal Advice to Council?

The latest in the never-ending controversy surrounding Hamilton's LRT project centres around a legal opinion sought & received by Council from lawyer George Rust-D'Eye. Council and/or the City apparently asked Mr. Rust-D'Eye for an opinion regarding a possible motion to hold a referendum on the LRT project. Council presumably wanted to know if such a motion were permissible, and if so what legal effect such a referendum might have. Exactly what Council asked, and what opinion was given, is unknown, as Council has kept this information confidential pursuant to solicitor client privilege. (This suggests that Council and/or the City is the client, otherwise they could not assert the privilege.)

Mr. Rust-D'Eye is a recognized expert on municipal law in Ontario. He maintains a successful private practice in Toronto. He is also Hamilton's Integrity Commissioner and Lobbyist Registrar.

As pointed out by Howard Elliott in an editorial in today's Hamilton Spectator, Mr. Rust-D'Eye was not acting in his role as Integrity Commissioner when he provided this opinion. Rather, he was hired and paid by Hamilton Council as a lawyer to research a point of law and provide an opinion. He's a private lawyer, and this was a business transaction. Mr. Rust-D'Eye reaps a personal financial benefit from being hired to do legal work for Council, and he presumably hopes that he will be hired for more such work in the future. Therein lies the difficulty.

Under Hamilton's Integrity Commissioner By-Law, the Integrity Commissioner has the power to conduct an inquiry into the actions of City Councillors, and determine whether or not there has been an infraction of the City's "Code of Conduct or other procedures, rules or policies governing the member’s ethical behaviour". The By-Law gives the Integrity Commissioner the power to decide whether a complaint is "frivolous and vexatious", and if he decides it is, the complainant's $100 fee will not be refunded. If the Integrity Commissioner finds that there has been a breach of the rules by a Councillor, he has the power to impose a penalty - a reprimand and/or a suspension of the Councillor's pay for up to 90 days.

In other municipalities, penalties are imposed by Council, upon the recommendation of the Integrity Commissioner (see, for example, subsection 160(5) of the City of Toronto Act). In Hamilton, however, the power to impose penalties has been delegated to the Integrity Commissioner (subsection 20(1) of the By-Law). This is an important distinction, as it places the Integrity Commissioner in a quasi-judicial role. The Integrity Commissioner has the power to investigate, compel evidence,  make decisions and impose penalties.

Given the quasi-judicial role of the Integrity Commissioner, it is, in my view, problematic that he accepts business from Council beyond his role as Integrity Commissioner. Having a separate business relationship with Council when he is also charged with impartially reviewing their conduct creates a possible conflict of interest or perception of bias.

By way of analogy: Say you had a dispute with your car dealership. You and the dealer agree to put your dispute before an independent third party to decide who is right. The dealer suggests that the dealership's lawyer act as the third party. Would you agree to that? Or would you fear that you might not be treated fairly given the lawyer's business relationship with the dealership?

Or imagine that a bar in a small town is frequently charged with serving alcohol to people underage. Because it is a small town, they always end up before the same judge. One day, the bar owners approach that judge and offer to pay her to do some legal work for them. Should the judge do it? Or should she decline, on the grounds that entering into a business arrangement with someone who is frequently in her court would undermine the perception of her impartiality?

Have Mr. Rust-D'Eye's dual roles as Integrity Commissioner & private lawyer for Council in fact affected the integrity of his work in either role? I don't know, and I do not have any evidence that it has. But the fact that the question can be raised, given the potential conflict of interest which arises, suggests to me that it would be better if the City did not have any outside business relationship with its Integrity Commissioner.