A city sub-committee has agreed to create a “confidentially clause” again any citizen who files a complaint to Hamilton’s proposed integrity commissioner.

Members of the committee say to protect politicians’ reputations from frivolous or vexatious complaints, the city will prevent citizens from speaking about any complaint they make to the commission to the media or within the public realm.

But the city’s solicitor argues the municipal government can’t prevent a citizen from telling the community nor the media about their complaint.

As members of the Accountability and Transparency sub-committee put the finishing touches on a draft bylaw to create Hamilton’s first integrity commissioner, they agreed to incorporate in the bylaw that any complaint made to the commissioner must be kept confidential by both the city and the complainant.

“I think it should be there in writing,” said Hamilton councillor Terry Whitehead. “It is somewhat of a deterrent.”

But Dundas resident Joanna Chapman disagreed, arguing governments can’t restrict the public’s rights to speak to the media.

“I feel a bit uneasy on that one,” she said. “To take away a right of a citizen is not right.”

Committee member Denise O’Connor pointed out why does a citizen have to talk to the media about the complaint they are making?

“What is the need to speak to the press,” she said. “I don’t think that’s fair.”

Mr. Whitehead said if a person making a complaint is “sincere”, they shouldn’t mind waiting silently during the investigation process and until the commissioner makes a public ruling. Eventually, he said, once the integrity commissioner rules on the complaint, the citizen will have “their day in the media.”

Added Mayor Fred Eisenberger, who made during his mayoral campaign creating an integrity commissioner one of his top priorities for his office, said the “accusations have done more harm than the complaint.

“There is a requirement on the complainant to remain confidential,” he added. “If there is any legitimacy to the complaint there should be confidentiality.”

But Peter Barkwell, the city solicitor, said the municipality has limited abilities to enforce such a statement in a bylaw. The city can halt the prevent the release of information on the complaint to the public and the media, but it can not prevent the complainant from telling the media about the issue.

“We will never be able to effectively enforce it,” he said.

There is also the problem of the citizen’s complaint being “leaked” to the media, said Mr. Barkwell, if the city decides to enforce a confidentiality clause. Again, he said, it would be difficult to prove who and if the information was even “leaked” into the public realm.

“You would have to prove the complainant leaked it,” he said.

The sub-committee did agree to charge $100 for a citizen to make a complaint to the commissioner. Committee members believed some sort of charge was necessary, since there is a cost for people to file papers to run for political office, and a cost to seek a legal judgement over an issue. The argument for the cost included trying to eliminate any complaints that are identified as frivolous or vexatious.

But they disagreed over how much the cost should be. Mr. Whitehead suggested $300, while Ms. Chapman opted for $50. Mountain councillor Scott Duvall suggested the $100 charge.

Ward 1 councillor Brian McHattie said he was originally against establishing a charge for people to file a complaint, arguing it would prove to be too much of a barrier for people.

“I’ve changed my mind,” he said. “There is a fee to run for council.”

In addition, the committee establish a 90-day moratorium on a person filing a complaint against a councillor during the municipal election period. Mr. Whitehead, fearful of some people using a complaint to the commissioner for political purposes against a competitor, suggested a moratorium on any complaints.

Mr. Barkwell said the moratorium will be for 90 days that will start from the municipal election date, traditionally in  November.

“It makes some sense,” said Mr. Eisenberger.

Mr. Whitehead, who suggested most of the changes to the integrity commissioner bylaw, also wanted the city to indemnify a councillor who is forced to hire an attorney to defend him during a complaint process.

Mr. Barkwell said that under the city’s legal guidelines, once the complaint has been dismissed, the councillor could seek legal indemnification from the city, but only if the councillor “acted honestly and on good faith with a view to the best interests of the city and had reasonable grounds for believing that his or her conduct was lawful.”

It would be determined by the city’s solicitor how much compensation the city will pay the councillor, said Mr. Barkwell. Any indemnification costs from the city has a ceiling of $10,000, he said.

The sub-committee, which has been debating the merits of creating an integrity commissioner since last fall, is expect to finalize its bylaw and present it to council this week.

Council has already set aside about $100,000 to create, what is expected to be a part-time office, similar to the position at the city of Toronto.

Politicians will determine the hiring process for the commissioner’s office, if council approves the bylaw.

Mr. Whitehead has been dogged in his determination to insert checks and balances into Hamilton’s draft bylaw. Another safeguard he suggested that the subcommittee agreed to is allowing the integrity commissioner to delegate any complaint made to someone else if the commissioner has previously provided advise to a councillor on the issue.

He also urged the subcommittee that any complaint to the commissioner must be done through a sworn affidavit.

Mr. Whitehead said he is confident the rest of council will approve the bylaw.

“I feel much more comfortable with the end product than I was at the beginning,” he said.

Ms. Chapman also convinced the committee that a complaint should be filed either through the clerk’s office or directly to the commissioner for review.

“This city hall is a leaky city hall,” said Ms. Chapman. “(People) should have that option.”

David Mullan, Toronto’s integrity commissioner, which was created in 2004, in the wake of the city’s MFP scandal, earns about $900 per day including expenses, which City Clerk Kevin Christenson calls “a bargain.” The cost does not include an administrative assistant.

The committee is expected to meet again next month to discuss the city’s code of conduct for councillors to see if any revisions need to be made. The commissioner will review any complaints made against councillors based upon the city’s Code of Conduct.

Meanwhile, Mr. Christenson told the committee that even though the city has yet to vote on approving the bylaw to create an integrity commissioner, someone has already sent a complaint to the city for the commissioner to review. Mr. Christenson has informed the letter writer Hamilton does not yet have a commissioner. And the application may not meet the city’s proposed guidelines. Mr. Christenson told the sub-committee the letter writer understood the situation.

“And it has now begun,” said Mr. Duvall.