But Elman just might be the right candidate for the job given that a major reason for his predecessor’s resignation was that he lived too far away from Windsor and felt torn between family obligations and working for the city. Earl Basse, a retired RCMP inspector and now Hamilton’s integrity commissioner, also criticized the city for not having appropriate protocols for the position that it created in 2007.
Windsor city clerk Valerie Critchley says the city hired Elman not just because of his professional background but also because “he does live in our community and has some ties to the community.”
Elman, University of Windsor dean of law for 11 years and a Nova Scotia native, has long had an interest in professional ethics. “I taught professional responsibility and ethics when I was at the University of Alberta and I continue to be interested in the subject and I write in that area,” he says.
This fall, Elman will also be teaching a course on fundamental freedoms at the University of Toronto, where he will be a visiting scholar at the Centre for the Legal Profession.
While Elman says he doesn’t want to sound “Pollyannish,” he notes another reason he applied for the Windsor job was that he wanted “to give something back to the City of Windsor.”
Elman follows in a relatively recent tradition of law deans, professors, and lawyers receiving appointments as municipal integrity commissioners. In Toronto, where the office has been in place since 2004, the two previous commissioners were David Mullan and Lorne Sossin. Both of them are academics.
While Toronto’s office adjudicates over code of conduct provisions in the City of Toronto Act, the provincial legislature amended the Municipal Act in 2006 to allow municipalities in general to adopt measures to increase accountability and transparency, including by creating offices of integrity commissioners.
Windsor wrote its code of conduct in 2007 and created the office at that time.
However, one of the issues that arose between Basse and Windsor city council was the lack of protocols for him to investigate complaints. Elman says that’s the first matter he’ll address.
Windsor has been using the Toronto integrity commissioner’s office, which has a well-defined set of protocols, as something of a model. There are currently 18 municipalities that have retained commissioners, usually on a part-time basis.
While Elman was aware of two high-profile cases before the city’s former commissioner — including Windsor Mayor Eddie Francis’ meeting on city business with former Detroit mayor Kwame Kilpatrick, who was violating a bond by being in Canada without permission while facing charges in a sex and perjury scandal — he was unaware of just how much of a lightning rod the office had become for numerous city hall critics and bloggers.
“It’s interesting,” he says. “When I had my first discussions with some of the city officials . . . they were telling me about this and I had no knowledge of it.”
Taking a page from his specialty in administrative ethics, Elman says having elected officials adhere to a code of conduct is “fundamental to the concept of good governance.”
The commissioner’s role requires investigation and adjudication of complaints from members of the general public. But Elman also hopes to include mediation.
“Because of my background and because I spent 11 years as the chair of the University of Windsor mediation services, I’m very interested in the idea that we’ll be able to put some mediation processes into the protocols that surround the complaints.”
Stephen D’Agostino, a partner at Thomson Rogers who has a municipal law practice with a strong emphasis on public interest matters, says the integrity commissioner provides a “middle ground” for complainants and elected officials. Previously, complainants had to rely on the Municipal Conflict of Interest Act, which is still in effect.
“If you’re found to be in conflict, the member of council loses their seat and that’s the end of it. There was no room for discussion or a grey area,” he says. The system also resulted in high court costs.
At the same time, the new codes of conduct are broader in terms of coverage than the conflict legislation. The codes deal with matters such as councillors’ personal behaviour and treatment of staff. “But the consequences that flow from it are also less severe,” D’Agostino says. Penalties in Windsor include a formal reprimand and loss of up to three months of salary.
Consequently, there’s little jurisprudence stemming from decisions of integrity commissioners. Toronto’s Janet Leiper, who was appointed in 2009, hasn’t had any of her decisions challenged in court.
Elman thinks a reason for that is that independent offices like integrity commissioners, auditors general, and ombudsmen have become well accepted by the public. Noting the respect accorded to recently retired federal auditor general Sheila Fraser, he says: “We’ve been developing in Canada a pretty healthy respect for independent oversight agencies and individuals.”