Hamilton councillors have selected a prominent Toronto lawyer to investigate both Mayor Fred Eisenberger and Stoney Creek Councillor Brad Clark over allegations of violating council's code of conduct.

Council last week hired lawyer George Rust-D'Eye of the law firm Weir Foulds LLP as the city's new interim integrity commissioner.

Mr. Rust-D'Eye, who is an acknowledged expert in municipal law, had also been selected a few weeks ago by city staff to investigate Mr. Eisenberger over a taped conversation with a reporter. Mr. Eisenberger has acknowledged he believes he has violated council's code of conduct during his "off-the-record" conversation.

Councillors approved Mr. Rust-D'Eye as the city's temporary integrity commissioner. It had been expected that the integrity commissioner would be a retired judge.

Corporate services manager Joe Rinaldo said he consulted with city lawyer Peter Barkwell when he selected Mr. Rust-D'Eye.

Mr. Rinaldo had selected Mr. Rust-D'Eye to investigate Mr. Eisenberger's complaint after councillors approved a motion to conduct an investigation on the mayor's actions.

Under last week's council approval, Mr. Rust-D'Eye will investigate both complaints using two different processes.

Since Mr. Eisenberger's incident was based upon a conversation he had with a reporter in May 2007, it will not follow the rules as laid out under the integrity commissioner's bylaw.

Mr. Clark's incident, though, did take place when the integrity commissioner bylaw was in place. Council approved the bylaw a month ago.

The different processes that Mr. Rust-D'Eye is working under had some politicians wondering if both investigations will be fair.

Mountain Councillor Scott Duvall said the mayor's incident should be investigated under the integrity commissioner legislation because his admission was revealed to the public last month.

"The date of when you become aware of the incident falls within the timeline of the bylaw," added Mountain councillor Terry Whitehead.

But city solicitor Ron Szabo said the mayor's complaint results from an incident that occurred over a year ago before the integrity commissioner legislation was approved by council.

"The bylaw did not exist at the time. The code of conduct was in place," said Mr. Szabo. "(The legislation) is forward-looking only."

The investigative tools that Mr. Rust-D'Eye has under the integrity commissioner's legislation is more substantial than under council's rules. For instance, the integrity commissioner can issue subpoenas for information, including records and people, conduct an inquiry, and the penalties could result in censure and loss of pay.

Prior to the integrity commissioner legislation, an investigation has to follow council's "rules of the day." Penalties include censure and loss of committee chair and vice-chair positions.

"There are two separate processes," said Mr. Clark. "One individual will make a decision on both."

Mr. Szabo said he expects Mr. Rust D'Eye will base his decision on the evidence.

"We would expect (him) to separate the evidence (from both investigations)," said Mr. Szabo.

City staff did not know how much both investigations will cost, but Mr. Szabo said a ballpark figure of about $30,000 could be possible.

The high cost had Downtown councillor Bob Bratina voting against conducting the investigations.

"I'm terrified we are going to run up a large bill," said Mr. Bratina. "I have no clamour from the public. We have spent hundreds of thousands of dollars (for investigations) into staff (activities) and have found nothing."

Mr. Clark submitted a letter last week to the city asking the integrity commissioner to investigate his conduct involving releasing the tape and transcript of the recording to a media outlet.

Mr. Clark also resigned from the Accountability and Transparency committee, the Governance committee and the Fairness to Hamilton committee. Mr. Eisenberger late July 11 also resigned from the Accountability and Transparency committee.

"It is honourable and principled to do what both Mr. Clark and the mayor have done," said Mr. Whitehead.

"They have stepped up to the plate, and they are prepared to take the consequences."