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Making city hall accountable

Cross Examined
|Written By Jennifer Brown
Making city hall accountable

Winnipeg lawyer Sherri Walsh is completing her first year overseeing the implementation of a code of conduct for city council.

From her office at Hill Sokalski Walsh Olson LLP, Sherri Walsh is about a 10-minute walk from Winnipeg City Hall — a place she’s been visiting quite often in the last year as she establishes herself as the city’s first integrity commissioner.

Her job is to offer ethics advice to members of Winnipeg city council, investigate allegations of conflict of interest and report on potential conflicts.

Named to the role in Feb. 22, 2017, Walsh, a prominent lawyer in Manitoba, officially started in the job April 1 of last year. Reflecting on the past year, she says it’s been a challenging one bringing forth two important aspects of her mandate — creating a tougher code of conduct for the mayor and members of council and overseeing the creation of a voluntary lobbyist registry.

“I’m coming to the end of my first year and loving it and so far I think they are happy with my work,” she says.

Winnipeg Mayor Brian Bowman ran on a campaign of transparency and accountability in 2014 and was keen that under his mandate the position of integrity commissioner would be created. While a code of conduct for mayor and council was in place since 1994, it really had no teeth if rules were broken.

The City of Winnipeg had been considering the idea of an integrity commissioner going back to 2009 when it was asking the province of Manitoba to amend the city charter to allow for the creation of an ethics commissioner. It asked again in 2013 and the province said the authority already existed in legislation, so in December 2015 council commissioned a report from the public service on what an integrity commissioner’s position would look like and did some cross-jurisdictional analysis. It then voted to create the role of integrity commissioner with the mandate to create a code of conduct and then issued a request for proposal and ultimately hired and appointed Walsh in February 2017.

Walsh is the co-founder of Winnipeg law firm Hill Sokalski Walsh Olson LLP, which she started in 1988 as a litigation boutique with David Hill. Much like Walsh, many integrity commissioners in other parts of Canada operate through companies or law firms.

Although the integrity commissioner job in large municipalities such as Toronto are full-time dedicated positions, in many jurisdictions, it is a role filled by individuals who have other jobs in addition to being integrity commissioner. In Calgary, for example, the job resides with two people: an ethics adviser — University of Calgary law professor Alice Woolley, and Allen Sulatycky, a retired justice of the Court of Queen’s Bench of Alberta, who acts as the integrity commissioner handling complaints and writing reports as to whether there’s been a breach of the city’s code of conduct.

“My colleagues across the country are the smartest group of people and the most generous with their time and information,” says Walsh. “For the six weeks leading up to April 1, I was cold-calling integrity commissioners around the country saying, ‘Can I talk to you for an hour?’”

The first year has seen Walsh spending considerable time on the job because she’s had to create an ethics and accountability framework where none really existed before. The other part of her mandate for the first year was to bring forward a new code of conduct and a complaints mechanism and recommendations for sanctions.

In addition to the complaints mechanism and sanctions, there is a section on harassment and respectful conduct that’s brand new and pertinent for current times. The code states: “All members of council have a duty to treat members of the public, one another, City staff and their own staff with respect and without abuse, harassment or intimidation.” The rules prohibit council members from engaging in any form of harassment including “leering, bullying, and objectionable and unwelcome sexual solicitations or advances.”

“That was a huge amount of work and it involved a very interesting process because everything I read about bringing into effect a code of conduct, whatever the context — government or otherwise — is that the people who are going to be subject to the code and who are approving it have to understand what it is because it is self-imposed,” she says.

That meant putting in considerable time developing relationships with members of council. She says she spent “a tremendous amount of time” meeting one on one with members of council individually and as a group on five occasions for more than two hours at a time to talk about what she was proposing and what it would mean in their daily lives, and for them to explain to her how they would function so she could make sure the code was responsive.

“Because, really, the most important aspect of the integrity commissioner’s role is the advisory role — to be there to give advice on a proactive basis,” she says.

Walsh says she spent a lot of time developing a rapport with each member of council so they would feel comfortable picking up the phone to seek advice, but she is also aware that she can’t get too close in her role as an independent advisor to council.

“I have to maintain a certain distance from them; I’m not their pal. At any given point, I may be investigating a complaint about one of them. It’s an interesting context in which to develop a trust relationship,” says Walsh.

Knowing how to conduct oneself in an ethical way is not such an obvious matter, even if it sounds like it should be, she says. “I said in a report to council that for a public official ‘being good and doing good’ is not the same as it is in your personal life — in your personal life to be a good person you do favours for your friends, your neighbours and family members, but as a public official that’s precisely what you must not do.”

Her role as integrity commissioner is directed to only the mayor and 15 councillors. Each of them has their own personal staff. “It’s up to each individual member of council to regulate their staff so I don’t have any authority over their staff or over the public service,” she says.

Part of the mayor’s platform when he ran also included introducing a lobbyist registry, on which Walsh has also been working.

“You need legislation for it to be a mandatory registry, so what council did was really pretty progressive — they approved what they called a voluntary lobbyist registry on the [city] website, and until there is legislation from the province it is only voluntary. But it is a good statement of what should be done. I’ve advised members of council to say to lobbyists that they won’t meet with them unless they do register, even though it is voluntary,” she explains.

Council also wants Walsh to work with the city’s legal department and bring forward recommendations on enacting legislation that will make a mandatory lobbyist registry, but she is the lobbyist registrar during the voluntary period. Council also wants her to work with the legal services department to bring forward a report enhancing the ethics and accountability framework.

For instance, in Ontario, there is specific legislation that gives integrity commissioners more power. Right now, once the code is passed, she will have the authority to conduct investigations, but she doesn’t have the authority to subpoena documents or witnesses or compel anyone to meet with her. To do that, the city would need changes to the legislation and, similarly, in terms of the kind of sanctions that can be imposed right now for breaching the code, they don’t include sanctions of a pecuniary nature.

Once the complaint protocol is in place, she will be ready to accept and record complaints. Anyone can file a complaint with Walsh, such as a member of the public, a member of the public service, the administration or another member of council and the entire council by resolution could ask her to investigate.

“You always see critical reports of integrity commissioners saying they should be more of a watchdog than they were. Under this new regime, when an integrity commissioner reports that there has been a breach of the code, it will be a public record — that’s a good accountability mechanism for the public,” she says.

Overseeing issues of fairness and process is nothing new for Walsh. In 2016, she received the Nellie McClung award in recognition of the work she does to promote social justice in Manitoba. She has a varied practice that includes human rights law as a large part of her practice. In 2012, she was named chief adjudicator of the adjudication panel under the Manitoba Human Rights Code. She also does securities litigation, workplace investigations and handles employment issues as well as Indigenous law. She sits as an arbitrator under the Treaty Land Entitlement agreement and serves as a part-time chairwoman of a discipline panel for the Mutual Fund Dealers Association Prairie Regional Council.

Walsh was also commission counsel in 2011 to the commission of inquiry into the circumstances surrounding the death of Phoenix Sinclair, the five-year-old girl murdered by her mother and stepfather.

“It’s one of the wonderful things about the practice of law — you can take your skills and apply them in so many different fields. I really feel privileged to have had so many opportunities of a diverse nature. It really is a privilege and I have been fortunate to have worked with so many interesting people including all these members of council. It's quite fascinating.