Experts warn new municipal codes of conduct could squelch dissent in New Brunswick

Experts warn that new municipal codes of conduct such as the almost-identical ones adopted by Moncton and Sackville could stifle free speech while infringing on the personal privacy of members of council.

Under a provincial regulation passed in 2018, municipalities are required to enact code of conduct bylaws that include provisions governing “the use of communication tools and social media by members of council,” but the details are left up to each municipality.

In an e-mail, Mount Allison politics professor Geoff Martin writes that Sackville’s code, passed in March, provides a “ready mechanism” to shut down dissent.

Martin, who served as a Sackville town councillor from 1998 to 2004, is referring to sections of both the Moncton and Sackville Codes that prohibit members of council from using “any property, equipment, services or supplies of the Town, including text messaging, email, internet services or any other electronic communication device, if the use could be considered offensive, inappropriate, or otherwise contrary to this Code.”

Another section prohibits members of council from using social media such as Facebook “to publish anything that is dishonest, untrue, unsubstantiated, offensive, disrespectful, constitutes harassment, is defamatory or misleading in any way.”

“Intelligent people can…disagree on what is offensive or disrespectful,” Martin writes.

“Skins can be so thin, that this invites a never-ending litany of complaints against anyone who raises their heads off the desk. I can’t imagine being a dissenter under these rules because this is a ready mechanism to shut down the dissenter,” he adds.

Martin writes that mayors and councillors are independently elected and need to have autonomy.

“They are not the same as ‘employees’ of the municipality. The tone of this document is to put them under the supervision of the council majority and the staff,” he writes.

“Intelligent people can disagree on what the best interest [of the community] is and disagreement should be encouraged, not discouraged.”

Read Martin’s e-mail here.

Free speech

Nicole O’Byrne, professor of law at the University of New Brunswick in Fredericton, says she’s concerned about a section of the Moncton and Sackville codes that warns members of council to be careful about engaging in social media debates on contentious matters “as feelings and emotions can become inflamed very quickly.”

“Well, last time I looked, we’ve got freedom of expression in this country and that cannot be trumped by somebody saying ‘well, you hurt my feelings,’” O’Byrne said.

“We’re supposed to be encouraging full and frank, open dialogue and debate, and how can you do that if it says ‘care should be exercised in debates or comments on contentious matters as feelings and emotions can be inflamed’?” she asked.

“So, does that mean if you’re emotional about something or you’re causing someone else to be upset about something, that you actually can’t engage in that level of discourse?” she added.

“We all know that city council things get heated, and they should because everybody really, really cares.”

O’Byrne also expressed concern about a section of both codes that calls on members of council to “arrange their private affairs in a manner which promotes public confidence and will bear close public scrutiny.”

“They wonder why more people don’t want to run for municipal politics,” she said.

“What kind of candidates are you going to have running for town council when the pay is so low, you’re told that there’s no difference between your public and private life, that you’re going to be subject to serious sanctions under a code of conduct even if you’re just expressing your own personal opinion. That’s a real deterrent.”

Both Professors O’Byrne and Martin acknowledge the positive aspects to the new codes of conduct including clarifying the respective roles of the mayor, council and municipal staff, but Martin writes that greater care must be taken not to “over-regulate” behaviour.

Independent adjudicator

Andrew Sancton, emeritus professor of political science at the University of Western Ontario in London, who specializes in the study of municipal politics, says he’s not especially concerned about the free speech and privacy implications of the Moncton and Sackville codes because many municipalities have adopted similar wording.

In response to an email request, Jamie Burke, Sackville chief administrative officer confirmed that the town’s code was developed through a thorough process that included a review of codes of conduct in municipalities across the country.

Sancton adds, however, he’s more concerned about the lack of an independent adjudicator to investigate complaints. “Councils shouldn’t be investigating themselves,” Sancton says. “You need an impartial person to handle complaints.”

“I put a fair amount of faith in having an impartial referee who would not take these words that are in the code of conduct and interpret them in such a way as to discourage or freeze meaningful debate about controversial issues,” he told the NB Media Co-op.

Under the Moncton and Sackville Codes, council may hire an independent investigator, but Sancton believes one should be in place ahead of time.

Moncton City Council debated appointing an integrity commissioner, but narrowly voted against it.

Sancton warned that problems can arise if there is no impartial referee, noting that Ontario provincial law requires the appointment of an integrity commissioner to investigate complaints. The integrity commissioner’s rulings can be appealed to the provincial ombudsman.

Codes of conduct across the province

The 2018 regulation applies to all eight cities, 26 towns and 51 villages in New Brunswick. It appears that most do not yet have a code, and many differences exist among the codes that have been adopted.

Unlike the codes in Sackville and Moncton, the Saint John code avoids general terms such as “dishonest,” “offensive,” “disrespectful” and “misleading” and states instead that members of council “shall use communication tools, such as newsletters, websites and social media in a responsible and respectful manner.”

The Saint John code adds that “members of council shall not engage in or encourage bullying, flaming or shaming of any other social media users,” and warns against “attacking individuals rather than engaging in constructive discussion or debate.”

Oromocto’s code of conduct says nothing explicitly about communication tools and social media.

Although Fredericton has not yet adopted a code, the Council’s Ad Hoc Committee on Gender Diversity suggested that the City adopt a Code of Conduct by-law and policy to improve gender diversity at Council tables.

The City of Bathurst adopted a code of conduct in 1992, the earliest of any reviewed for this story. The Town of Riverview adopted its code in 2019, the same year the Town of Rothesay adopted a code of ethics.

Potential breaches of the codes of conduct by council members have made the news in several municipalities, including Saint John – a complaint by the Saint John Citizens Coalition against mayor Don Darling in August 2019, and a complaint by the Saint John Police Association against councillor David Merrithew in November 2019 – and Quispamsis, when mayor Gary Clark was suspended for two Code of Conduct breaches in October 2019.

At this point in the early days of municipal codes of conduct, it seems the variations among the different codes and how they are being applied across the province reflects the diversity of New Brunswick and local sensibilities.

Bruce Wark worked in broadcasting and journalism education for more than 35 years. He was at CBC Radio for nearly 20 years as senior editor of network programs such as The World at Six and World Report.  He currently writes for The New Wark Times where an earlier version of this story first appeared.