1. Bylaw Enforcement: Best Practices Guide for Local Governments Presentation to Southern Interior Local Government Association Conference, Kelowna, BC April 20, 2016 Zoë Jackson, Manager of Systemic Investigations Adam Barnes, Ombudsperson Officer

2.  What is the Office of the Ombudsperson?  Why did we create this guide?  Why is Fairness Important?  Best Practices  How to Respond to Ombudsperson Investigations  Five Key Points  Questions?

3.  The Ombudsperson is an Officer of the Legislature  Powers set out in the Ombudsperson Act  Identifies, upholds and promotes administrative fairness by conducting impartial and independent investigations  Jurisdiction to investigate local governments (Schedule, ss. 4-11)  Investigations can begin in response to complaints, or they can be initiated by the Ombudsperson  Issues public reports (Open Meetings Guide, Bylaw Enforcement Guide)

4.  Sharing What We’ve Learned  Improving Fairness in Bylaw Enforcement  Bylaw Enforcement Complaints o Approximately 8-10 per cent of complaints we receive each year are about local governments o The second most common kind of complaint relates to bylaw enforcement processes

5.  Geography, population, financial resources  Bylaws evolve as values and standards change  Bylaw enforcement practices vary widely  Specialized team, one staff person or contractor  Focus on voluntary compliance or enforcement

6. What does fairness mean in a local government bylaw enforcement context? Bylaws are authorized by legislation Policy for exercising discretion Standards of conduct and clearly-defined roles Clear communication with the public Timely complaints process Consistent and documented investigations Adequate notice before enforcement decisions Consistent, proportionate and equitable decisions Reasons for decisions Access to appeal or review process

7.  Help reduce conflict  Better use of staff time and resources  Builds strong community relationships

8.  Role of Council  Dealing with bylaw complaints  Conducting bylaw investigations  Taking Enforcement Measures  Appeals of Enforcement Decisions

9. Role of Council – Enforceability  Consider enforceability when developing a new bylaw  Provide ways for staff to quickly and easily raise concerns about enforceability Example: Enforcement at a Standstill

10. Role of Council – Discretion in Enforcement  Guidelines for Exercising Discretion: Developing a Bylaw Enforcement Policy  Courts have given wide discretion to local governments to decide when and whether to enforce bylaws  Our Goal: local governments exercise discretion in a manner that is, and is seen to be, administratively fair

11. Role of Council – Discretion in Enforcement  Why develop an enforcement policy?  Outline goals and expectations publicly  Efficiency  Defend against allegations of unfairness or conflict  Consistency and certainty

12. Role of Council – Discretion in Enforcement Content of an Enforcement Policy: 1.Written in plain language that is easily understood and applied 2.Sets out clearly what the policy is intended to achieve 3.Is flexible enough to cover a variety of circumstances where staff must exercise discretion 4.Does not fetter staff in exercising discretion by requiring them to take the same steps in each case, regardless of circumstances, or discouraging individual responsibility for decisions

13. Role of Council – Discretion in Enforcement Content of an Enforcement Policy, con’t: 5.Sets out the relevant considerations that staff should take into account when exercising discretion 6.Sets out its relationship to – and accurately reflects – governing legislation and bylaws 7.Is communicated to staff 8.Is readily accessible to the public (on a website) 9.Is reviewed and revised as appropriate given changing circumstances in the community

14. Role of Council – Discretion in Enforcement Applying An Enforcement Policy:  Should result in consistent decisions, provide direction to staff and clarity to public  Two caveats:  Cannot override anything that is required by bylaw  Cannot be so prescriptive that staff can’t make own decisions

15. Dealing with bylaw complaints  Create and implement a written complaints policy.  The policy should: 1. Outline how a person can make a complaint and what information must be included in the complaint 2. State which staff will be responsible for receiving, recording and responding to complaints 3. State whether and how the local government prioritizes complaints for response 4. Set out a process for recording each complaint and the outcome, and expected timelines for staff to respond to complaints

16. Dealing with bylaw complaints  Complaints policy (continued): 5. List steps staff must follow to assess a complaint and determine any necessary follow-up, including whether to investigate 6. Set out a process for acknowledging the complaint and communicating the results to the public 7. Set out procedures for dealing with frivolous, repeat or multiple complaints Example: The More is Not the Merrier

17. Conducting bylaw investigations  Maintain a consistent approach to investigations  Deciding whether to investigate  Developing an investigation plan  Documenting an investigation Example: Good documentation pays off

18. Taking Enforcement Measures  Enforcement Options: o Prosecution under the Offence Act o Municipal ticketing o Bylaw offence notice o Direct enforcement o Civil proceedings

19. Taking Enforcement Measures Jurisdiction and authority to act Notice prior to enforcement Example: Call first next time Enforcing bylaws proportionally, equitably and consistently Providing reasons for enforcement decisions

20. Appeals of enforcement decisions  Bylaw notice appeals Example: An Appeal in Name Only  Other administrative review or appeal processes

21. Appeals of enforcement decisions  A fair appeal process must include: o Opportunity to be heard o An unbiased decision-maker o Adequate and appropriate reasons

22. Our Process when we Receive a Complaint  Decide whether or not to investigate the complaint  Investigation Steps: o Notify the local government of our investigation o Request information from the local government o Assess all of the information provided o If appropriate, consult with the local government on a fair resolution to the complaint o Notify the complainant and local government in writing of the outcome of the investigation

23. How to Respond  Review the focus of our investigation  Speak with investigator  Provide information requested  If we have identified a possible resolution to a complaint, consider it

24.  Resolutions of complaints have involved local governments doing the following: o Reimbursing fines, fees or penalties o Reconsidering an enforcement decision o Providing written or verbal reasons for a decision o Meeting with the complainant o Providing an apology o Investigating a bylaw complaint or taking enforcement steps o Changing or developing a policy or practice o Amending a bylaw

25. 1.A local government should formalize its enforcement processes in written policy. 2.A local government should establish a policy framework for discretionary decisions.

26. 3.A local government should make enforcement policies publicly available. 4.Building administrative fairness into your process will make your life easier.

27. 5.The Office of the Ombudsperson can help.

28. Questions? 1-800-567-3247 www.bcombudsperson.ca 947 Fort Street Victoria PO BOX 9039 STN PROV GOVT VICTORIA BC V8W 9A5 SUBSCRIBE TO E-NEWS: at www.bcombudsperson.ca to receive systemic reports, updates on recommendations and periodic news from the Office of the Ombudsperson Contact us at: Zoë Jackson, Manager of Systemic Investigations 250-217-5391 zjackson@bcombudsperson.ca Adam Barnes, Ombudsperson Officer 250-356-0211 abarnes@bcombudsperson.ca