This Ontario town hired its own lawyer as integrity watchdog. Residents say that's not OK
Tony Fleming says he's integrity commissioner for about 80 municipalities and there's no issue
An eastern Ontario township and its lawyer are under scrutiny as residents raise conflict of interest concerns over the lawyer also acting as the community's integrity commissioner — a dual role that Ontario's ombudsman says shouldn't happen.
Every municipality is mandated by the province to have an integrity watchdog who is independent and investigates conduct and conflict of interest complaints against elected officials and local boards, among other tasks.
For years, Tony Fleming has been acting as both solicitor and integrity commissioner for Tay Valley Township, a community near Perth, Ont.
Upon learning about the dual role, some residents and former councillors told CBC News the situation is "totally wrong," and said they felt "aghast" and "perplexed" as to why the township is allowing this. Some characterized it as Fleming essentially being tasked with investigating his own client, and question how that could be done in an unbiased and independent manner.
"The integrity commissioner might be the most pure-minded and best person in the world — however, the appearance of [this dual role] is totally wrong," said resident John Lang.
Meanwhile, Fleming says he's now the integrity commissioner for about 80 municipalities in Ontario, and fulfilling dual roles as solicitor in about 20 of those communities. Fleming said there is no conflict and insisted he "can be perfectly independent in these roles."
Lang said he began seeing red flags with his local government when a group of neighbours began questioning the township over contentious rules surrounding "unassumed" roads, which are publicly owned but privately maintained by the homeowners who live along them.
He said for years, the township has been "one-sided" and "unresponsive" to him, and he believes there's been no accountability or transparency from his local government.
There is significant potential for public confusion, distrust, and both real and perceived conflicts of interest.- Ontario ombudsman guidelines
Lang has submitted several complaints to the township over the road issue, and more recently sent six complaints to the integrity commissioner — all of which were dismissed by Fleming last month.
It was during this time Lang realized the integrity commissioner was the same lawyer who's been advising the township on legal and Ontario Land Tribunal matters stemming from the road issue. Lang believes this is a conflict.
Neighbour Catherine Anderson agrees, saying it "gives rise to an incredible possibility for conflict of interest."
Anderson said it's important for residents to trust local governance processes, and learning of this duality led her to "feel aghast, perplexed, confused and confounded."
"It's a bit unnerving. I think it's misguided," she added.
Anderson wants to see Fleming removed from one of those roles, like he was in nearby Rideau Lakes Township.
Fleming was also both solicitor and integrity commissioner for Rideau Lakes, where a councillor said the township hired a different integrity watchdog last year partly due to conflict of interest concerns.
"An integrity commissioner to me should be at arm's-length from anyone at the township," said Coun. Paula Banks. "I just felt it was inappropriate."
The Ontario ombudsman investigates public complaints about problems in government administration, but can't enforce recommendations.
Under its best practices code, the office says integrity commissioners should be prevented from taking on other roles for the same municipality "including acting as legal counsel."
"When integrity commissioners carry out multiple functions in a municipality, there is significant potential for public confusion, distrust, and both real and perceived conflicts of interest," the guide reads.
"This practice undermines public confidence in the independence of integrity commissioners."
The ombudsman wrote that independence "both real and perceived, from the council, local boards and municipal staff should be maintained to the greatest degree possible."
There's no issue, says lawyer
Fleming said he can't disagree with the ombudsman about the "possible perception" of conflict of interest, but "disagree[s] completely that that perception is reality."
"I am 100 per cent comfortable that I am doing the very best job in a completely independent manner for my clients, both as solicitor and as integrity commissioner," Fleming said.
Fleming explained his client for both roles is the municipal corporation of the Township of Tay Valley, so "I cannot have a conflict of interest acting for the same client."
He said he doesn't take direction from any single member of council. If he believed he was in conflict about a certain matter, Fleming said he generally refers the integrity complaint to another firm and declares a conflict.
"Municipal council has to decide, are they comfortable with the possible perception or not?" he said.
WATCH | Conflict of interest concerns with integrity commissioner:
Former Tay Valley councillor Andrew Kendrick, who resigned this summer for health reasons, said he had some procedural concerns over Fleming's reappointment for another term.
He said it was decided by a group of chief administrative officers (CAOs) "without any input" from council or the township, and was brought forward for a vote at the 11th hour before the contract expired.
"There's no democratic accountability there at all. It looks as if council took a vote and accepted this, but council was basically told that we had no alternative," Kendrick said. "There was a gun held to our head."
When asked about this, CAO Amanda Mabo wrote that Tay Valley entered into a joint contract alongside 10 other Lanark County municipalities with Cunningham, Swan, Carty, Little & Bonham LLP, a team led by Fleming, in 2018.
Mabo said last year, staff brought forward a report recommending a contract extension, and council agreed. (The report was dated a few weeks before the contract expired.)
"There is no need or reason to consider appointing someone else to the role," Mabo wrote in an email.
Township Reeve Rob Rainer agrees with Mabo.
"While there may be the perception of a problem among the public, that doesn't mean that there is a problem," Rainer said, though he admitted the township could do a better job explaining why Fleming is providing both services.
"It's not an uncommon arrangement at all," Rainer said. "He is regarded as one of the leading municipal law experts, at least in eastern Ontario."
Rainer added that a "tiny minority of citizens" have been "disgruntled" with the township over the unassumed roads matter, but he believes local government has been transparent and functioning well.
Ombudsman received complaints
In an emailed statement, the provincial ombudsman's office said it can't confirm whether it received specific complaints, nor comment on the status of investigations.
It pointed to its latest annual report, noting most of the 80 complaints and inquiries the office received about municipal accountability officers were specifically about integrity commissioners.
"The Ombudsman also cautioned municipalities against giving integrity commissioners multiple roles, in light of a complaint we received about a municipal solicitor who was also serving as integrity commissioner," reads a line in that report.
In 2021, the office made a submission to the province's Ministry of Municipal Affairs to standardize protocols for integrity commissioners.
The ministry responsible declined an interview, but said in a statement that municipalities have "flexibility" regarding hiring.
When asked about the concerns over dual roles, the ministry said it's "aware there are variations in local approaches to this matter" and is "exploring options to strengthen the municipal code of conduct framework."
After exhausting several avenues — from his local MP, the solicitor general, the premier, and even Ontario Provincial Police — Lang feels there's no one to hold his local government accountable.
"I didn't come relocate up here for my retirement to deal with this — the sleepless nights, the utter disregard of Tay Valley for the concerns of their citizens ... that's not the way it should work," he said.
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