E-15.1.0.1 - Municipal Ethics and Good Conduct Act

À jour au 30 novembre 2018

Ce document a valeur officielle.

chapter E-15.1.0.1

Municipal Ethics and Good Conduct Act

CHAPTER I PURPOSE

1. The purpose of this Act is to ensure that the members of every council of a municipality explicitly adhere to the main ethical values of the municipality, and to provide for the adoption of rules of conduct and the application and enforcement of those rules.

2010, c. 27, s. 1.

CHAPTER II CODES OF ETHICS AND CONDUCT

DIVISION I MUNICIPALITIES CONCERNED

2. Every municipality must have the codes of ethics and conduct described in Divisions II and III.

The first paragraph does not apply

(1)  to a northern, Cree or Naskapi village;

(2)  to a municipality whose council, in accordance with the Act establishing or governing the municipality, is not composed of persons elected by its citizens; or

(3)  with respect to the code described in Division II, to a regional county municipality whose warden is not elected in accordance with section 210.29.2 of the Act respecting municipal territorial organization (chapter O-9).

2010, c. 27, s. 2.

DIVISION II CODE OF ETHICS AND CONDUCT OF ELECTED MUNICIPAL OFFICERS

§ 1 . — Scope

3. A code of ethics and conduct adopted under this division applies to every member of any council of the municipality.

However,

(1)  the code of ethics and conduct of a regional county municipality applies only to its warden elected in accordance with section 210.29.2 of the Act respecting municipal territorial organization (chapter 0-9); and

(2)  the code of ethics and conduct of the central municipality of an urban agglomeration that is subject to the Act respecting the exercise of certain municipal powers in certain urban agglomerations (chapter E-20.001) does not apply to the urban agglomeration council members who do not represent the central municipality.

2010, c. 27, s. 3.

§ 2 . — Content of code of ethics and conduct

A.  — Ethics

4. The code of ethics and conduct must set out the main ethical values of the municipality, including the following values:

(1)  the integrity of the members of every council of the municipality;

(2)  the honour attached to the office of council member;

(3)  prudence in the pursuit of the public interest;

(4)  the respect to be shown to the other council members, to the employees of the municipality and to the citizens of the municipality;

(5)  loyalty to the municipality; and

(6)  the quest for equity.

The values set out in the code must guide council members in their understanding of the rules of conduct that apply to them.

2010, c. 27, s. 4.

B.  — Conduct

5. The code of ethics and conduct must also set out

(1)  the rules that must guide the conduct of individuals as members of a council, committee or commission of the municipality or as members of another body in their capacity as council member;

(2)  the rules that must guide the conduct of those individuals after the expiry of their term as council member.

The rules must, in particular, aim to prevent

(1)  any situation where the private interest of a council member might impair his or her independence of judgment in carrying out the duties of office;

(2)  any situation that would be contrary to sections 304 and 361 of the Act respecting elections and referendums in municipalities (chapter E-2.2); and

(3)  favouritism, embezzlement, breach of trust or other misconduct.

2010, c. 27, s. 5.

6. The code of ethics and conduct must include rules prohibiting a member of a council of the municipality from

(1)  acting or attempting to act, or omitting to act, in any way, in carrying out the duties of office, so as to further his or her private interests or improperly further those of another person;

(2)  using his or her position to influence or attempt to influence another person’s decision so as to further his or her private interests or improperly further those of another person;

(3)  soliciting, eliciting, accepting or receiving any benefit, whether for himself or herself or for another person, in exchange for taking a position on a matter that may be brought before a council, a committee or a commission on which the council member sits;

(4)  accepting any gift, hospitality or other benefit, whatever its value, that may impair his or her independence of judgment in carrying out the duties of office, or that may compromise his or her integrity;

(5)  using the resources of the municipality or of any other body referred to in subparagraph 1 of the first paragraph of section 5 for personal purposes or for purposes other than activities related to the duties of office;

(6)  using or communicating, or attempting to use or communicate, whether during or after his or her term, information obtained in or in connection with the carrying out of the duties of office that is not generally available to the public so as to further his or her private interests or those of another person; and

(7)  within 12 months after the expiry of his or her term, serve as a director or officer or senior executive of a legal person or hold employment or any other position so as to obtain for himself or herself or another person undue benefit from his or her prior office as council member.

The rules must also require a member of a council of the municipality to file a disclosure statement in writing with the clerk or the secretary-treasurer of the municipality within 30 days after receiving a gift, hospitality or other benefit not prohibited under subparagraph 4 of the first paragraph that is not of a purely private nature and whose value exceeds the value specified in the code, which may not be greater than $200. The disclosure statement must contain an accurate description of the gift, hospitality or benefit received and specify the name of the donor and the date on which and the circumstances under which it was received.

The clerk or the secretary-treasurer keeps a public register in which such disclosure statements are recorded.

At the last regular council sitting in the month of December, the clerk or the secretary-treasurer tables an extract from the register containing the disclosure statements filed since the last sitting at which such an extract was tabled.

2010, c. 27, s. 6.

7. The code of ethics and conduct must reproduce section 31, with the necessary modifications.

2010, c. 27, s. 7.

7.1. The code of ethics and conduct must prohibit a member of a council of the municipality from announcing, during a political financing activity, the carrying out of a project, the making of a contract or the granting of a subsidy by the municipality, unless a final decision regarding the project, contract or subsidy has already been made by the competent authority of the municipality.

A council member who employs office personnel must ensure that those employees comply with the prohibition under the first paragraph. If an employee fails to comply with that prohibition, the council member is accountable and subject to the sanctions set out in section 31.

2016, c. 17, s. 101.

§ 3 . — Formalities

8. Any decision relating to the adoption of the code of ethics and conduct is made by a by-law adopted in accordance with this subdivision.

2010, c. 27, s. 8.

9. In the case of the central municipality of an urban agglomeration that is subject to the Act respecting the exercise of certain municipal powers in certain urban agglomerations (chapter E-20.001), only its regular council may adopt a by-law under section 8.

2010, c. 27, s. 9.

10. The by-law must be adopted at a regular council sitting; its adoption must be preceded by the tabling of a draft by-law and the publication of a public notice as required by sections 11 and 12.

2010, c. 27, s. 10.

11. The draft by-law must be tabled at a sitting of the council by the council member giving the notice of motion; in the case of a regional county municipality, only the warden may give the notice of motion.

The notice of motion may not be replaced as provided for by the tenth paragraph of section 445 of the Municipal Code of Québec (chapter C-27.1).

2010, c. 27, s. 11; 2018, c. 8, s. 263.

12. After the tabling of the draft by-law, the clerk or the secretary-treasurer must, in accordance with the Act governing the municipality, give a public notice containing a summary of the draft by-law and setting forth the date, time and place of the sitting at which the by-law is to be adopted.

The notice must be published not later than seven days before the sitting.

In addition to being posted, the notice given by the secretary-treasurer of a regional county municipality must be published in a newspaper circulating in its territory, on or before the same deadline.

2010, c. 27, s. 12.

§ 4 . — Obligation to revise code of ethics and conduct

13. Every municipality must, before 1 March following a general election, adopt a revised code of ethics and conduct to replace the one in force, with or without amendments.

2010, c. 27, s. 13.

§ 5 . — Miscellaneous provisions

13.1. Not later than 30 days after the day on which the code of ethics and conduct, the revised code of ethics and conduct or a by-law amending either code is adopted, the clerk or the secretary-treasurer must send a certified copy of it to the Minister of Municipal Affairs, Regions and Land Occupancy.

2010, c. 42, s. 39.

14. If a municipality has failed to fulfill its obligation to have a code of ethics and conduct or to adopt a revised code of ethics and conduct within the time specified in section 13, the Minister may, without further formality, make any regulation that is required to remedy the failure; the regulation is deemed to be a by-law adopted by the council of the municipality.

Despite any provision to the contrary, a regulation made by the Minister comes into force on the date a notice to that effect is published by the Minister in the Gazette officielle du Québec.

2010, c. 27, s. 14; 2010, c. 42, s. 40.

15. Any member of a council of a municipality who has not already participated in a professional development program on municipal ethics and good conduct must participate in such a professional development program within six months after the beginning of his or her term.

The professional development program must, among other aims, encourage participants to reflect on municipal ethics and adhere to the values set out in the code of ethics and conduct, and help them acquire the competencies they need to understand and observe the rules set out in the code.

Failure to participate in such a professional development program is an aggravating factor for the purposes of section 26.

Within 30 days after participating in such a professional development program, a council member must report his or her participation to the clerk or the secretary-treasurer of the municipality, who in turn reports it to the council.

2010, c. 27, s. 15.

DIVISION III CODE OF ETHICS AND CONDUCT OF MUNICIPAL EMPLOYEES

16. Every municipality must have a code of ethics and conduct setting out the main ethical values of the municipality and the rules that must guide the conduct of its employees.

2010, c. 27, s. 16.

16.1. The code of ethics and conduct must include the prohibition imposed by section 7.1, with the necessary modifications.

It must also include the prohibition set out in subparagraph 7 of the first paragraph of section 6 and provide that the prohibition applies, with the necessary modifications, to the following employees of the municipality:

(1)  the director general and the assistant director general;

(2)  the secretary-treasurer and the assistant secretary-treasurer;

(3)  the treasurer and the assistant treasurer;

(4)  the clerk and the assistant clerk; and

(5)  any other employee designated by the council of the municipality.

2016, c. 17, s. 102; 2018, c. 8, s. 178.

17. The code of ethics and conduct must reproduce section 19, with the necessary modifications.

2010, c. 27, s. 17.

18. Any decision relating to the adoption of the code of ethics and conduct is made by by-law. The adoption of the by-law must be preceded by the tabling of a draft by-law, an employee consultation on the draft by-law and the publication of a public notice as required by section 12.

2010, c. 27, s. 18.

19. A violation by an employee of a rule of the code of ethics and conduct referred to in section 16 may, on a decision of the municipality and subject to any contract of employment, entail any sanction warranted by the nature and seriousness of the violation.

2010, c. 27, s. 19.

CHAPTER III MECHANICS AND ENFORCEMENT

DIVISION I COMMUNICATION OF INFORMATION AND INQUIRIES

2010, c. 27, Div. I; 2018, c. 8, s. 179.

20. Any person may communicate information to the Commission municipale du Québec concerning a violation of a code of ethics and conduct applicable to a member of a council of a municipality.

The first paragraph applies despite the provisions of the Act respecting the protection of personal information in the private sector (chapter P-39.1) and the Act respecting Access to documents held by public bodies and the Protection of personal information (chapter A-2.1) that concern the release or communication of information, except section 33 of the latter Act. It also applies despite any other communication restrictions under a law and any duty of confidentiality or loyalty that may be binding on a person, including toward an employer or, if applicable, a client.

However, the lifting of professional secrecy authorized under this section does not apply to professional secrecy between a lawyer or a notary and a client.

The Commission must take all necessary measures to protect the identity of persons who have communicated information to it confidentially under the first paragraph.

2010, c. 27, s. 20; 2016, c. 17, s. 103; 2018, c. 8, s. 179.

21. The Commission may, on its own initiative or after information is communicated under section 20, obtain from any person information it considers necessary concerning a violation referred to in that section. The first two paragraphs of section 91 of the Act respecting the Commission municipale (chapter C-35) apply to the obtaining of such information by the Commission.

2010, c. 27, s. 21; 2016, c. 17, s. 104; 2018, c. 8, s. 179.

22. The Commission may, if of the opinion that the information in its possession is likely to show that a member of the council of a municipality has violated a rule of the code of ethics and conduct applicable to the member, conduct an inquiry to determine whether such a violation has been committed.

The inquiry must be opened within three years after the end of the member’s term.

The Commission must inform the council member that he or she is under inquiry.

2010, c. 27, s. 22; 2016, c. 17, s. 105; 2018, c. 8, s. 179.

22.1. The inquiry is conducted by a member, lawyer or notary designated by the president of the Commission.

For the purposes of the inquiry, the member has the powers and immunity conferred on commissioners appointed under the Act respecting public inquiry commissions (chapter C-37), except the power to order imprisonment.

2018, c. 8, s. 179.

23. (Repealed).

2010, c. 27, s. 23; 2016, c. 17, s. 106; 2018, c. 8, s. 180.

24. The Commission allows the council member under inquiry to present a full and complete defence. In particular, it gives the council member the opportunity to make representations and, if the member so requests, to be heard

(1)  first, on whether or not the council member violated a rule of the code of ethics and conduct; and

(2)  second, after the Commission presents its conclusion on the matter with reasons, on the sanction that could be imposed on the council member.

2010, c. 27, s. 24; 2010, c. 42, s. 41; 2016, c. 17, s. 107; 2018, c. 8, s. 181.

25. The values set out in the code of ethics and conduct and the aims stated in the second paragraph of section 5 must guide the Commission in its understanding of the applicable rules of conduct.

2010, c. 27, s. 25.

26. If the Commission concludes that the council member’s conduct constitutes a violation of a rule of the code of ethics and conduct, the Commission imposes one or more of the sanctions set out in section 31 or decides not to impose a sanction. In making its decision, the Commission takes into consideration the seriousness of the violation and the circumstances in which it occurred, including whether or not the council member obtained a written advisory opinion, containing reasons, from an ethics and conduct adviser or took any other reasonable measure to comply with the code.

2010, c. 27, s. 26.

27. The Commission must, not later than 90 days after the day on which the council member was informed of the inquiry in accordance with section 22, send its decision to the member and the municipality or, if the inquiry is still under way, inform the council member of the progress of the inquiry and the date on which the Commission will send its decision.

2010, c. 27, s. 27; 2018, c. 8, s. 182.

28. The clerk or the secretary-treasurer of the municipality must submit the decision to the council at the first regular sitting held after its receipt.

2010, c. 27, s. 28.

29. The members of the Commission may not be compelled to give testimony relating to information obtained in the exercise of their functions or to produce a document containing such information.

2010, c. 27, s. 29.

30. Except on a question of jurisdiction, no application for judicial review under the Code of Civil Procedure (chapter C-25.01) may be exercised nor any injunction granted against the Commission or its members acting in their official capacity under this Act.

A judge of the Court of Appeal may, on an application, annul by a summary proceeding any decision made or order or injunction issued contrary to the first paragraph.

2010, c. 27, s. 30; I.N. 2016-01-01 (NCCP).

DIVISION II SANCTIONS

2010, c. 27, Div. III; 2018, c. 8, s. 179.

31. A violation by a member of a council of a municipality of a rule of a code of ethics and conduct adopted under section 3 may entail the imposition of the following sanctions:

(1)  a reprimand;

(2)  the delivery to the municipality, within 30 days after the decision of the Commission municipale du Québec,

(a)  of any, or of the value of any, gift or hospitality or benefit received; or

(b)  of any profit made in violation of a rule set out in the code;

(3)  the reimbursement of the remuneration, allowances or other sums received as member of a council, committee or commission of the municipality or member of a body while the violation of a rule of the code continued; or

(4)  the suspension of the council member for a period of up to 90 days and not exceeding the expiry of his or her term.

When suspended, a council member may not sit on any council, committee or commission of the municipality or on any other body in his or her capacity as council member, nor may the council member receive any remuneration, allowance or other sum from the municipality or such a body.

2010, c. 27, s. 31.

32. If the Commission’s decision imposes the delivery of a thing or the reimbursement of an amount of money, the municipality may have it homologated by the Superior Court or the Court of Québec, according to the amount involved or the value of the thing concerned.

Once homologated, the decision is enforceable as a judgment of that Court in civil proceedings.

2010, c. 27, s. 32.

DIVISION III MISCELLANEOUS PROVISIONS

2010, c. 27, Div. IV; 2018, c. 8, s. 179.

33. The Commission may promote municipal ethics and good conduct practices, for instance by publishing documents intended for the municipalities. Such documents are drafted under the supervision of the vice-president assigned to matters relating to municipal ethics and conduct.

2010, c. 27, s. 33.

34. A former council member is deemed to be a council member for the purposes of this chapter.

2010, c. 27, s. 34.

35. The Commission draws up a list of ethics and conduct advisers whose services may be retained by a municipality or a council member to provide an advisory opinion on any matter relating to the code of ethics and conduct.

Any advocate or notary who practises municipal law and requests to be on the list is entered on the list.

The list is posted on the Commission’s website.

2010, c. 27, s. 35; 2016, c. 17, s. 108.

36. An inquiry by the Commission under Division I of this chapter and, if applicable, the imposition of a sanction under section 31 do not prevent the bringing of an action for a declaration of disqualification against the council member under inquiry regarding the same facts.

2010, c. 27, s. 36; 2018, c. 8, s. 183.

36.1. Any person who, in good faith, communicates information referred to in section 20 to the Commission or cooperates in a search for information or an inquiry conducted by the Commission under Division I of this chapter incurs no civil liability for doing so.

2018, c. 8, s. 184.

36.2. It is forbidden to take a reprisal against a person who has, in good faith, communicated information referred to in section 20 to the Commission or cooperated in a search for information or an inquiry conducted by the Commission under Division I of this chapter.

It is also forbidden to threaten to take a reprisal against a person to dissuade him or her from performing an act described in the first paragraph.

The demotion, suspension, termination of employment or transfer of a person referred to in the first paragraph or any disciplinary or other measure that adversely affects the employment or working conditions of such a person is presumed to be a reprisal.

2018, c. 8, s. 184.

36.3. Any person who believes a reprisal has been taken against him or her may file a complaint with the Commission in order to have the Commission examine whether the complaint is well-founded and submit any recommendations the Commission considers appropriate to the clerk or the secretary-treasurer of the municipality concerned, who must submit them to the council at the first regular sitting held after their receipt.

The Commission may, for the purpose of examining the merits of the complaint, obtain information in accordance with section 21.

If the reprisal a person believes has been taken against him or her seems, in the opinion of the Commission, to constitute a prohibited practice within the meaning of subparagraph 15 of the first paragraph of section 122 of the Act respecting labour standards (chapter N-1.1), the Commission refers that person to the Commission des normes, de l’équité, de la santé et de la sécurité du travail.

On completing its examination, the Commission informs the complainant of its findings and of any recommendations it may have.

2018, c. 8, s. 184.

36.4. Any person who communicates or wishes to communicate information under section 20, who cooperates in a search for information or an inquiry conducted by the Commission under Division I of this chapter or who believes a reprisal has been taken against him or her may contact the Public Protector to obtain the legal advice provided for in section 26 of the Act to facilitate the disclosure of wrongdoings relating to public bodies (chapter D-11.1), in which case the third and fourth paragraphs of that section apply, with the necessary modifications.

2018, c. 8, s. 184.

36.5. As soon as possible, the Commission sends the public body concerned the information obtained under Division I of this chapter that it considers may be

(1)  communicated to the inspector general of Ville de Montréal under section 57.1.13 of the Charter of Ville de Montréal, metropolis of Québec (chapter C-11.4);

(2)  disclosed to the Public Protector or the minister responsible for municipal affairs, as applicable, under section 6 of the Act to facilitate the disclosure of wrongdoings relating to public bodies (chapter D-11.1);

In force: 2019-05-25

(3)  communicated to the Autorité des marchés publics under section 56 of the Act respecting the Autorité des marchés publics (chapter A-33.2.1); or

(4)  disclosed to the Anti-Corruption Commissioner under section 26 of the Anti-Corruption Act (chapter L-6.1).

The communication of information by the Commission in accordance with this section must comply with the terms and conditions determined in an agreement.

2018, c. 8, s. 184.

36.6. Whoever

(1)  communicates information under section 20 that he or she knows to be false or misleading;

(2)  contravenes section 36.2;

(3)  by an act or omission, helps a person to commit an offence under subparagraph 1 or 2; or

(4)  by encouragement, advice or consent or by an authorization or order, induces another person to commit an offence under subparagraph 1 or 2

is guilty of an offence and is liable to a fine of $2,000 to $20,000 in the case of a natural person and $10,000 to $250,000 in all other cases.

For any subsequent offence, the amounts are doubled.

2018, c. 8, s. 184.

36.7. Whoever

(1)  hinders or attempts to hinder the Commission, refuses to provide information or a document that he or she must send or refuses to make it available, or conceals or destroys a document likely to be useful for an inquiry;

(2)  by an act or omission, helps a person to commit an offence under subparagraph 1; or

(3)  by encouragement, advice or consent or by an authorization or order, induces another person to commit an offence under subparagraph 1

is guilty of an offence and is liable to a fine of $4,000 to $20,000.

For any subsequent offence, the amounts are doubled.

2018, c. 8, s. 184.

CHAPTER IV AMENDING PROVISIONS

37. (Amendment integrated into c. C-35, s. 3).

2010, c. 27, s. 37.

38. (Amendment integrated into c. C-35, s. 100.1).

2010, c. 27, s. 38.

39. (Amendment integrated into c. E-2.2, s. 313).

2010, c. 27, s. 39.

40. (Amendment integrated into c. E-2.2, s. 317).

2010, c. 27, s. 40.

41. (Amendment integrated into c. E-2.2, s. 860).

2010, c. 27, s. 41.

42. (Amendment integrated into c. E-2.2, Schedule I).

2010, c. 27, s. 42.

43. (Amendment integrated into c. E-2.2, Schedule II).

2010, c. 27, s. 43.

44. (Amendment integrated into c. M-22.1, s. 17.8).

2010, c. 27, s. 44.

CHAPTER V TRANSITIONAL AND FINAL PROVISIONS

45. The council of a municipality that does not have

(1)  a code of ethics and conduct of elected municipal officers that meets the requirements of this Act must adopt one not later than 2 December 2011;

(2)  a code of ethics and conduct of municipal employees that meets the requirements of this Act must adopt one not later than 2 December 2012.

2010, c. 27, s. 45.

46. The first extract from the disclosure statements register referred to in the fourth paragraph of section 6 must be tabled before the council of the municipality at the last regular sitting of the year following the year of coming into force of the code of ethics and conduct of elected municipal officers.

2010, c. 27, s. 46.

47. Despite section 15, any member of a council of a municipality whose term is underway on 2 December 2010 or starts before 2 December 2011 must participate in a professional development program referred to in that section before 2 June 2012.

2010, c. 27, s. 47.

48. For the purposes of section 313 of the Act respecting elections and referendums in municipalities (chapter E-2.2), if a code of ethics and conduct of elected municipal officers is not in force at the time an elected person is to be sworn in, the oath provided in Schedule II to that Act is replaced by the following oath:

“I, (name of council member), declare under oath that I will fulfill the duties of the office of (mayor or councillor) with honesty and justice, in accordance with the law.”

2010, c. 27, s. 48.

49. Any member of a council of a municipality whose term is underway on the date the code of ethics and conduct of elected municipal officers comes into force must, within 30 days after that date, take the following oath:

“I, (name of council member), declare under oath that I will fulfill the duties of the office of (warden, mayor or councillor) in accordance with the Code of Ethics and Conduct of the Elected Municipal Officers of (name of municipality), and undertake to observe the rules of that code applicable to me after my term has ended.”

2010, c. 27, s. 49.

50. The Minister of Municipal Affairs, Regions and Land Occupancy must, not later than 2 December 2011, 2 December 2012 and 2 December 2013, report to the Government on the carrying out of this Act.

As well, the Minister must, not later than 2 December 2014 and subsequently every four years, report to the Government on the carrying out of this Act and the advisability of amending it.

A report under the first or second paragraph is tabled in the National Assembly within the next 30 days or, if the Assembly is not sitting, within 30 days of resumption. The report is examined by the competent committee of the National Assembly.

2010, c. 27, s. 50.

51. The Minister of Municipal Affairs, Regions and Land Occupancy is responsible for the administration of this Act.

2010, c. 27, s. 51.

52. (Omitted).

2010, c. 27, s. 52.