What is the basis for the commissioner to make an election to office determination?
Under the Public Service of Ontario Act, 2006 (the Act), section 101, the commissioner may make a determination on whether a public servant’s employment or appointment should be terminated upon election to a municipal office.
Who may seek an election to office determination?
The following persons may seek an election to office determination from the commissioner:
- A public servant for whom the commissioner is ethics executive and who has been or is seeking election to a municipal office
- The ethics executive of a public servant who has been or is seeking election to municipal office (the ethics executive may request that a matter be referred to the commissioner)
In addition, the commissioner may make an election to office determination upon being made aware that a public servant for whom the commissioner is ethics executive has been or is seeking election to a municipal office.
How is the process of seeking an election to office determination initiated?
The above-mentioned public servants or ethics executives may contact the commissioner’s office, preferably in writing, to request an election to office determination. They may do so before or after the relevant municipal election. The request should include enough background information for the commissioner to understand the following:
- The public servant’s duties
- The possible impact of election to office on those duties
- Possible measures to minimize the impact of election to office on the public servant’s duties
A referral request from an ethics executive should also include information about why the ethics executive is requesting to refer the matter rather than making the determination. The commissioner may request additional information.
Will the commissioner always make an election to office determination if asked?
In some cases, the commissioner may decide not to proceed to a determination, such as where another process under the Act is more appropriate (e.g., providing advice under section 64 of the Act) or where it is more appropriate for the ethics executive to make the determination.
Will the public servant have an opportunity to provide comments to the commissioner?
Yes. Before making a determination, if the public servant involved has not already provided comments, the commissioner will contact the individual to obtain his or her comments on the issues.
What might the determination include?
In making a determination, the commissioner may include the following:
- Relevant provisions of the Act and regulations
- Relevant factual and legal issues to be considered
- Findings on the factual and legal issues
- Relevant previous decisions of the commissioner, agencies, or the courts
- Advice on how to reduce the risk of a breach of the Act
Do determinations and directions have to be followed?
Yes. Determinations under the Act are final and public servants must comply with them. Determinations may include directions to take specific steps to ensure compliance with the Act.
Will the commissioner contact any other individuals?
The commissioner may contact other individuals for the purpose of confirming or supplementing the information received. Also, the commissioner may notify other individuals involved (such as the ethics executive) of the outcome of the matter, but only to the extent required to discharge the commissioner’s duties under the Act.
What happens after the determination?
The commissioner may contact the public servant or ethics executive after the determination in order to ensure that suggested or required actions have been followed, provide additional advice, or add further determinations or directions.