The City of New Westminster’s ethics commissioner is recommending Mayor Patrick Johnstone receive training on a section of the Community Charter related to the acceptance of gifts.
That recommendation comes after Jennifer Devins, the city’s ethics commissioner, found Johnstone had breached council’s Code of Conduct.
In February, councillors Daniel Fontaine and Paul Minhas filed a complaint against Johnstone under the city’s Code of Conduct for council members. They alleged he breached the Code of Conduct and Section 105 of the Community Charter when he attended a conference in Dubai in December 2023 and received complementary travel, meals, and accommodation.
Johnstone was among elected officials from around the world who attended the COP28 conference in Dubai in December 2023.
In a Sept. 23 report to council, Devins said Johnstone (the respondent in this matter) had received gifts or personal benefits connected with the performance of the duties of his office, within the meaning of Section 105 of the Community Charter, including attendance at the COP28 conference, travel, accommodations, and meals. She concluded that the only portion of this gift that falls within the exception in Section 105(2)(a) is the part related to attendance at the conference.
“I find that the respondent’s contravention of Section 105 was inadvertent and the result of an error in judgment made in good faith,” she wrote.
Devins also concluded that Johnstone had met the requirements to file a disclosure statement under Section 106 of the Community Charter and did not breach that section of the charter.
“Although I have found that the respondent acted in good faith and out of inadvertence, I recommend that the respondent receive coaching or training regarding section 105 of the Community Charter,” she wrote.
Having found that the Johnstone breached council’s Code of Conduct, Devins was required to make recommendations as to appropriate sanctions. Because Johnstone “acted in good faith” related to his attendance at the conference, she determined that “no sanctions are appropriate” – but she did feel it was appropriate to make a recommendation.
“It was apparent from the submissions that there is not a clear understanding of the limitations imposed by Section 105 of the Community Charter. In the circumstances, I recommend that the respondent receive training or coaching in the relevant provisions of the Community Charter. Such training or coaching should include identifying when an offer may constitute a gift or personal benefit and what gifts or personal benefits may fall within the exclusions of Section 105,” she wrote.
“Council may determine that such training would be beneficial for all council members in order to avoid any similar issues in the future.”
New Westminster city council will consider the issue at a special meeting on Monday, Nov. 4 at 11 a.m.
In response to the report, Johnstone was given an opportunity to provide a written respond. A memorandum from Johnstone is attached to the Code of Conduct report.
“I want to open by clearly stating that I agree with the bulk of the findings of the ethics commissioner, and appreciate the comprehensiveness of her work,” he said in the memo. “I think the summary report provides a clear outline of the concern raised and fairly describes my actions. I fully support the recommendation made by the ethics commissioner.”
In his memo, Johnstone said the commissioner was clear in her report that his participation in the 2023 Local Climate Action Summit and COP28 was consistent with the social obligations and duties that accompany the office of mayor and was consistent with the city’s commitment to taking action on climate change. He said the report noted he was transparent with council, staff, and the public about the nature of his participation in the conference and explained he had sought and followed the advice of staff and external legal counsel in relation to Section 105.
“The summary that I acted in good faith with the motivation to further the city’s goals relating to climate action is a finding with which I agree,” Johnstone wrote. “I appreciate and accept the commissioner’s recommendation that coaching be offered on the relevant provisions of the Community Charter.”
Johnstone suggested the coaching on section 105 of the Local Government Act be provided to all of council in accordance with a motion unanimously supported by city council on Jan. 22, 2024. That motion was to have the city’s new ethics commissioner be requested to conduct a workshop with council on the Code of Conduct, including Section 105 of the Community Charter.
Ethics investigator investigates.
In her report, Devins outlined the issues to be decided in this complaint:
- Did the respondent receive a “fee, gift or personal benefit that is connected with his performance of the duties of office” within the meaning of Section 105 of the Community Charter?
- If so, was the “gift or personal benefit received as an incident of the protocol or social obligations that normally accompany the responsibilities of office” within the meaning of Section 105(2)(a)?
- If not, did the respondent act “inadvertently or because of an error in judgment made in good faith” within the meaning of Section 105(3)?
- If the respondent received a gift or benefit within the meaning of Section 105(2)(a), did he file a timely disclosure statement as required within the meaning of Section 106 of the Community Charter?
- If the disclosure statement did not meet the requirements of Section 106 of the Community Charter, was the failure to meet those requirements done inadvertently or because of an error in judgment made in good faith?
According to the commissioner’s report, Bloomberg Philanthropies emailed the city clerk on Nov. 3, 2023, inviting Johnstone to attend the COP28 Local Climate Action Summit on Dec. 1 and 2 in Dubai.
The commissioner’s report noted Johnstone sought further information about the conference from the city’s manager of climate action and, based in part on the information provided by staff, determined there would be value to the city in attending the conference because New Westminster had declared a climate emergency in 2019 and the city is committed to taking action to reduce greenhouse gas emissions.
Johnstone attended the conference and related events from Dec. 1 to 6, 2023 and returned home on Dec. 7. He flew business class to Dubai and stayed at the Waldorf Astoria Hotel, with those costs, as well as those of conference events, covered by the C40 Cities Climate Leadership groups.
Following his return, Johnstone received advice from the city’s internal counsel that his attendance at the conference likely did not constitute a “gift” within the meaning of Section 105 of the Community Charter, said the report.
“The respondent also sought legal advice from external counsel, who advised him that his attendance at the conference likely constituted a gift or personal benefit but fell within the exception under Section 105(2)(a) for things ‘received as an incident of the protocol or social obligations that normally accompany the responsibilities of office’,” said the report.
In their submission, Fontaine and Minhas (the complainants) asserted Johnstone had breached the Code of Conduct and Section 105 of the Community Charter by “knowingly accepting an extravagant gift from a third-party organization.”
They said the trip was a “gift” and was not managed or facilitated by the city’s staff; they noted that a third party covered the costs.
“The complainants allege that the respondent has been able to use his trip for personal political gain through his social media posts,” said the ethics commissioner’s report. “They assert that the respondent’s posts communicate to residents that the respondent was at the conference on a sanctioned trip, representing the city in a formal capacity.”
Fontaine and Minhas alleged that Johnstone’s conduct undermines the principles in the Code of Conduct related to openness, leadership, and integrity.
In his submission, Johnstone said the councillors’ complaint was “unfounded” and was based on two false assertions: that he breached the Community Charter and, in turn, the Code of Conduct, and that he failed to follow policies and procedures, which could not be a Code of Conduct issue.
“The respondent asserts that the language and allegations used by the complainants are intended to cast aspersions on his character and integrity, which he believes to be the goal of the complainants,” said the commissioner’s report. “The respondent asserts that the complaint is vexatious.”
Based on the advice he had received from both internal and external counsel, Johnstone’s did not believe his conduct breached the Community Charter.
Devries, however, viewed it differently. She concluded that Johnstone’s travel, meals, lodging, and conference attendance constituted a gift or personal benefit under the Community Charter.
“The fact that COP28 may have been attended by other Canadian politicians does not negate the character of the trip as gift or personal benefit,” Devins wrote. “While the trip may have been beneficial to both the respondent and the city, that does not mean it is exempt from the definition of a gift or personal benefit under the Community Charter. Similarly, the fact that the funds were received from an organization that has views that are aligned with the city’s goals in reducing global emissions does not change the character of the gift.”
Devins said COP28 and the Local Climate Action Summit conference in Dubai may be of importance or interest to the City of New Westminster, which has declared a climate crisis and implemented various goals and policies to try and reduce greenhouse gas emissions.
“I accept that the respondent’s attendance at the conference was a genuine fact-finding mission to become better informed about subject matter that is closely related to a public duty,” she wrote.
Devins said Johnstone’s attendance at the conference was consistent with taking action in furtherance of the city’s 2019 declaration and commitment but separated his attendance at the conference from the meals, travel, and lodging associated with attending at the conference.
“I accept that attendance at this conference was consistent with the respondent’s social obligations that accompany the office of mayor where the city has made commitments to climate action,” she wrote. “Receiving luxury travel, accommodation, and meal expenses to attend an international conference, however, is outside the scope of the ordinary social obligations that accompany the office.
Devins said there was no evidence before her to suggest that the travel and accommodation package provided to Johnstone for the Dubai trip falls within the scope of what would “normally” be provided to attend a conference of an organization of which the city is not a member. Thus, she deemed that the travel package provided to Johnstone was not “normal,” so the travel, accommodation, and meals were gifts or personal benefits that are not covered by the exclusion in Section 105(2)(a) of the Community Charter.
According to Devins, Johnstone acted in good faith (which can include acting on erroneous advice) when agreeing to attend the conference in Dubai. In her report she stated:
- Upon receiving the invitation, Johnstone took steps to investigate whether the conference would provide a benefit to the city, and was satisfied that it would provide such a benefit. He informed the CAO and acting mayor of his intention to attend.
- Johnstone did not try to hide his acceptance of the gift. He posted publicly about the trip to his Instagram page and on his blog. “Although these communications are not official city communications, they do evidence an intention to share the learnings from the conference.”
- Johnstone spoke about the conference with council while he was attending the conference. (He attended a council meeting virtually on Zoom while in Dubai.)
“Notwithstanding the allegations of the complainants, I find that the respondent was motivated in his acceptance of the gift to further the city’s goals relating to climate action,” Devins wrote.
In her report, Devins said that Johnstone sought legal advice, first from the city’s internal counsel and then from an external counsel, when he became aware that some councillors were concerned about the trip.
“He was initially advised that the trip likely did not constitute a gift or personal benefit. He was later advised that it likely did constitute a gift or personal benefit but fell within the exception in Section 105(2)(a). Upon receiving advice to file a disclosure statement, he immediately did so,” she wrote. “Although I have reached a different conclusion than the advice received by the respondent, there was no reason for the respondent to doubt the soundness of the advice that he received. It was reasonable for him to act in accordance with that advice.”
Although Johnstone did not seek legal advice until after he had accepted the gift, Devins concluded he had acted in good faith and his breach was inadvertent, as he did seek advice and information regarding the conference and its benefit to the city and informed the CAO of the offer.
“I find that the respondent acted in good faith in his acceptance of the gift, and that his breach of section 105 of the Community Charter was occasioned out of inadvertence,” she concluded.
New West Progressives and Johnstone respond
The Record contacted Fontaine for comment, but he said he is unable to comment on the issue and referred the Record to Karima Budhwani, president of the New West Progressives.
In a news release, Budhwani said city council needs to ask Johnstone to pay back the cost of his trip to Dubai – including the business class airfare, meals, and luxury hotel accommodations paid for by U.S.-based Bloomberg Philanthropies and the conference organizing committee. She said the mayor should be asked to repay the funds – estimated at about $15,000 – to the conference organizer, or, if that is not possible, donated to a New Westminster charity.
“Patrick Johnstone has been on city council for over a decade,” she said in a news release. “The ethics commissioner says the mayor should now ‘receive coaching or training’ around the rules, something a 10-year member of council shouldn’t need. New Westminster residents expect their mayor to know the rules and to do the right thing.”
Budhwani said it is “disappointed” that the first report issued by the city’s ethics commissioner is about “a very serious breach” of the Code of Conduct and the Community Charter by the mayor.
“New Westminster city council will be conducting a hearing in public next week, and I urge the council to ask Mayor Johnstone to make things right by apologizing to New Westminster residents and returning or donating the funds to a charity,” she said in the news release.
Johnstone told the Record he was pleased the commissioner had viewed his participation in the Local Climate Action Summit as being part of the normal duties as the mayor, that she felt he had properly communicated with council, with staff, with the public, and that he had acted in good faith by following the advice from city staff and legal counsel. Having followed the advice of legal counsel, Johnstone said he was confident he was OK.
“Surprised? A little bit yes. I was a little bit surprised because there is some opaque parts of Section 105. I always acted following the best advice I could get,” he said. “I acted in good faith. I am happy with the recommendation. I think we should do the recommendation.”
Johnstone thinks it would be wise for all members of council to take part in the training on Section 105, as there are some different interpretations of that section of the Community Charter.
“It’s good that we have an ethics commissioner, that this city has this process for the Code of Conduct and an ethics commissioner that can actually look into this and bring a recommendation to council. It’s transparent and it’s accountable. I appreciate that we have this process,” he said. “I acted in good faith, and I did it with the goal, as the ethics commissioner clearly said, of furthering climate action in the city.”
