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S.M. 2009, c. 35

Bill 35, 3rd Session, 39th Legislature

The Municipal Conflict of Interest and Campaign Financing Act (Various Acts Amended)

(Assented to October 8, 2009)

HER MAJESTY, by and with the advice and consent of the Legislative Assembly of Manitoba, enacts as follows:

PART 1

AMENDMENTS TO MUNICIPAL COUNCIL CONFLICT OF INTEREST ACT

C.C.S.M. c. M255 amended

1           Section 13 of The Municipal Council Conflict of Interest Act is replaced with the following:

Statements available to public

13(1)       The clerk of the municipality shall make every statement filed under section 9 available for inspection by any person without charge during normal business hours.

November 2009 statements and beyond

13(2)       Subsection (1) applies in respect of any statement required to be filed by a date in November 2009 and thereafter.

PART 2

AMENDMENTS TO MUNICIPAL ACT

C.C.S.M. c. M225 amended

2            The Municipal Act is amended by this Part.

3           The centred heading "DATE OF ELECTIONS" is added before section 86.

4           The centred heading "WARDS" is added before section 87.

5           The centred heading "ELIGIBILITY FOR NOMINATION AND ELECTION" is added before section 90.

6           The centred heading "RIGHTS OF EMPLOYEES IN ELECTIONS" is added before section 92.

7           The following is added after section 93:

CAMPAIGN FINANCING

Definitions

93.1(1)     The following definitions apply in this section and in sections 93.2 to 93.18.

"campaign account" means, in respect of a registered candidate, an account that is listed in his or her application to become a registered candidate. (« compte de campagne »)

"campaign expense" means

(a) money spent or liabilities incurred; and

(b) the value of non-monetary contributions accepted;

in respect of goods used or services provided, by or on behalf of, and with the knowledge and consent of, a registered candidate during a campaign period, for the purpose of an election, but does not include expenses relating to a recount in respect of the election. (« dépenses électorales »)

"campaign period" means

(a) in a general election

(i) in Dunnottar, Victoria Beach and Winnipeg Beach, the period

(A) in the case of a candidate for head of council, beginning on February 1 and ending on December 31 of the year of the election, and

(B) in the case of other candidates, beginning on March 31 and ending on December 31 of the year of the election, and

(ii) in any other municipality, the period

(A) in the case of a candidate for head of council, beginning on May 1 in the year of the election and ending on March 31 of the year after the election, and

(B) in the case of other candidates, beginning on June 30 in the year of the election and ending on March 31 of the year after the election; and

(b) in a by-election, beginning on the day when the senior election official receives the request from council to hold the by-election and ending on the day that is 90 days after the by-election. (« période de campagne électorale »)

"contribution" means money paid, or a non-monetary contribution provided, by a contributor to or for the benefit of a registered candidate, without compensation from the candidate. (« contribution »)

"financial institution" means a bank, credit union, trust company or other similar institution. (« établissement financier »)

"non-monetary contribution" means goods or services provided to or for the benefit of a registered candidate, without compensation from the candidate, and includes

(a) services of an employee provided by an employer;

(b) goods produced or donated voluntarily by a contributor who is a commercial supplier of the goods; and

(c) services provided voluntarily by a contributor who is a commercial or occupational supplier of the services;

but does not include

(d) money;

(e) goods produced or donated voluntarily, other than in clause (b); or

(f) services provided voluntarily, other than in clause (c). (« contribution non monétaire »)

"organization" includes

(a) a trade union, a partnership and an unincorporated association;

(b) a political party registered under the Canada Elections Act, or a constituency association of such a party; and

(c) a political party registered under The Elections Finances Act, or a constituency association of such a party. (« organisation »)

"registered candidate" means a candidate who has been registered under section 93.3. (« candidat inscrit »)

Value of non-monetary contribution

93.1(2)     The value of a non-monetary contribution is

(a) the fair market value of the goods or services at the time of the donation; or

(b) where the non-monetary contribution is services of an employee provided by an employer, the cost to the employer of the salary or wages of the employee whose services are provided for the period during which the services are provided.

By-law on expenses and contributions

93.2        A council must pass a by-law, not inconsistent with The Municipal Council Conflict of Interest Act,

(a) prescribing the limit to campaign expenses that may be incurred by a registered candidate for head of council and by a registered candidate for councillor;

(b) prescribing the portion of income from a fund-raising event that is deemed to be a contribution, and the portion that is deemed to be campaign expenses;

(c) prescribing the manner in which registered candidates must keep records of contributions received and campaign expenses incurred by them;

(d) in respect of an election finance statement required to be filed under section 93.12,

(i) prescribing additional information, if any, required to be included in the statement, and

(ii) prescribing the date by which the statement must be filed, which must not be more than 210 days after the election;

(e) prescribing the date by which any further statement requested by the chief administrative office under subsection 93.12(2) must be filed, which must not be more than 60 days after the registered candidate receives the request; and

(f) prescribing forms for the purposes of the by-law.

Registration of prospective candidates

93.3(1)     The senior election official must register an individual who proposes to be a candidate in an election if

(a) during the campaign period for the election and before nominations close, the individual applies for registration in a form approved by the senior election official; and

(b) the senior election official is satisfied that the individual is eligible to be nominated in the election.

Information that must be provided

93.3(2)     When applying to be registered as a candidate, the individual must provide

(a) his or her name and address;

(b) the name and address of any financial institution in which accounts are to be used by or on behalf of the individual for the purpose of the election campaign, and the numbers of every such account; and

(c) any additional information required by the senior election official.

Report of change in information

93.3(3)     An individual must immediately notify the senior election official in writing of any changes in the information provided by him or her under this section.

No contribution, expenses or borrowing until registered

93.4        No individual, other than a registered candidate, and no person acting on the individual's behalf, shall, for the purpose of electing the individual,

(a) solicit or accept a contribution;

(b) borrow money; or

(c) incur an expense.

Registered candidate entitled to copy of voters list

93.5        The senior election official must give a registered candidate, on request, a copy of the voters list. The senior election official may determine the form in which the list is given.

Only individual residents may contribute

93.6(1)     No person or organization other than an individual normally resident in Manitoba shall make a contribution to a registered candidate.

Application to Flin Flon

93.6(2)     Despite subsection (1), an individual who is normally resident in the boundary area defined in The Flin Flon Extension of Boundaries Act, S.M. 1989-90, c.73, may make a contribution to a registered candidate in an election in the City of Flin Flon.

Limit on contributions by individuals

93.6(3)     No individual shall make contributions that exceed

(a) $1,500. to a registered candidate who is a candidate for the office of head of council;

(b) $1,500. to a registered candidate who is a candidate for the office of councillor, if councillors are elected by a vote of the voters of the whole municipality; or

(c) $750. to a registered candidate who is a candidate for the office of councillor, if councillors are elected on the basis of wards.

Prohibited contributions not to be accepted

93.6(4)     A registered candidate in an election shall not

(a) solicit or accept a contribution from

(i) a person who is not an individual normally resident in Manitoba, or

(ii) an organization;

(b) solicit or knowingly accept a contribution that exceeds the limits established in subsection (3); or

(c) incur campaign expenses in respect of the election in excess of the limit prescribed in the by-law passed under clause 93.2(a).

Return of contribution

93.6(5)     A registered candidate, on learning of any contribution accepted by or on behalf of him or her is contrary to this Act, shall immediately return to the contributor

(a) the contribution; or

(b) the amount of money equal to the value of the contribution.

Candidate's personal contributions

93.7(1)     A registered candidate may make a contribution

(a) to his or her own election campaign; or

(b) to the election campaign of another registered candidate.

Limit applies to contributions of candidate

93.7(2)     For certainty, the limit to the contributions established in subsection 93.6(3) applies to the contributions made by a registered candidate.

Anonymous contributions

93.8        A registered candidate who is given an anonymous contribution must not spend the contribution, but rather must turn it over to the senior election official.  Contributions turned over to the senior election official become part of the general funds of the municipality.

Loans only from financial institutions

93.9(1)     A registered candidate shall not solicit or accept a loan for the purposes of an election, except from a financial institution.

Prohibition making loan

93.9(2)     No person or organization, other than a financial institution, shall make a loan to a registered candidate for the purposes of an election.

Loans to registered candidates

93.9(3)     A loan made by a financial institution to a registered candidate is not a contribution.

Loan must be paid into campaign account

93.9(4)     A registered candidate shall ensure that a loan received from a financial institution is paid directly into a campaign account of the candidate.

Loan payments must be made from campaign account

93.9(5)     Payments on a loan made to a registered candidate must be made from a campaign account of the candidate.

Loan payments made in different manner

93.9(6)     A payment on a loan made to a registered candidate that is not made from a campaign account of the candidate is a contribution to the candidate made by the person or organization that made the payment.

No loans from registered candidates to others

93.10       A registered candidate shall not lend money raised for the purposes of an election to another person or to any organization.

Duties of registered candidate

93.11       A registered candidate in an election must ensure that

(a) proper records are kept of the contributions made to, and the campaign expenses incurred by, the candidate;

(b) monetary contributions are deposited in a campaign account of the candidate;

(c) a campaign account of the candidate is used only for the purpose of the election campaign of the candidate;

(d) all payments relating to or arising out of the campaign are made only by cheque drawn on a campaign account of the candidate; and

(e) all financial records relating to the election campaign of the candidate are retained for not less than two years after the election and made available on request to the chief administrative officer.

Candidate to file election finance statement

93.12(1)    Each registered candidate in an election must file with the chief administrative officer an election finance statement that contains the following information in respect of the campaign period of the election:

(a) all contributions received and expenses incurred by the candidate;

(b) the name, address and the contribution of each contributor who has made to the candidate a contribution of more than $250.;

(c) an itemized list of campaign expenses incurred by the candidate;

(d) the contributions and expenses relating to each fund-raising event, in accordance with apportioning prescribed in a by-law passed under clause 93.2(b);

(e) particulars of any loan made to the candidate for the purpose of the election campaign, including the name of the financial institution that made the loan, the principal amount of the loan, the interest rate on the loan and the terms of repayment;

(f) any other information required by the by-law passed under subclause 93.2(d)(i).

Further statement

93.12(2)    If the chief administrative officer finds an election finance statement filed by a registered candidate to be incorrect or incomplete and notifies the candidate in writing of the finding, the candidate is required, not later than a day prescribed in the by-law passed under clause 93.2(e) and specified in the notice, to file with the chief administrative officer a further statement containing the information required under subsection (1).

Audit may be required

93.13(1)    A council may by by-law require election finance statements, and further statements requested under subsection 93.12(2), to be audited.

Qualifications of auditor

93.13(2)    If a council has passed a by-law under subsection (1), a candidate's election finance statement and any further statement requested from the candidate under subsection 93.12(2) must be prepared by an auditor

(a) who is entitled to practise as an accountant under The Chartered Accountants Act, The Certified General Accountants Act or The Certified Management Accountants Act; and

(b) who is not involved in the election for which the statement is prepared as an election official, as defined in section 1 of The Municipal Councils and School Boards Elections Act, a candidate, or in raising funds for a registered candidate, and who certifies to that effect.

Appointment of auditor

93.13(3)    If a council passes a by-law under subsection (1), the candidate must include the name and address of the candidate's auditor in the candidate's application to be registered under section 93.3.

Audit expenses are not campaign expense

93.13(4)    The expense incurred by the candidate in having a statement audited is not a campaign expense of the candidate.

Effective date of by-law

93.13(5)    A by-law under this section must be passed at least 180 days before the election in respect of which it is to take effect.

Claims for campaign expenses

93.14       A person who has a claim against a registered candidate in an election for payment in relation to the election must submit the claim in writing to the candidate within 30 days after the election day in the election.

Surplus payable to municipality

93.15(1)    Where a registered candidate's election finance statement filed under subsection 93.12(1) shows a surplus of funds, the candidate must immediately pay the surplus to the municipality which must hold it in trust on behalf of the candidate for use by the candidate in the next general election.

Release of surplus

93.15(2)    The municipality must not release money held under subsection (1) in trust on behalf of an individual who was a registered candidate in an election until the individual is registered under section 93.3 (registration of prospective candidates) for the next general election, and if the individual

(a) advises the senior election official in writing that the individual will not seek nomination;

(b) is not nominated; or

(c) is not registered under section 93.3 as a candidate;

in the next general election, the money must be paid into the general funds of the municipality.

Failure by elected candidate to file statement

93.16(1)    Where a registered candidate who is elected in an election fails to file

(a) an election finance statement required under subsection 93.12(1) before the date prescribed in a by-law passed under subclause 93.2(d)(ii); or

(b) a further statement required under subsection 93.12(2) before the date prescribed in a by-law passed under clause 93.2(e);

the chief administrative officer must provide a written report of the failure to council at its next meeting, and the candidate must not sit on council until the chief administrative officer reports to council that the candidate's statement has been filed.

Forfeiture of seat

93.16(2)    Every registered candidate elected in an election forfeits his or her seat on council if the candidate fails to comply with section 93.12 (filing election finance statement) within 270 days after the day of the election.

Failure of other registered candidates to file

93.16(3)    Where an individual who is registered as a candidate in an election and who is not nominated, withdraws, or is not elected in the election, fails to comply with section 93.12 (filing election finance statement), the individual is disqualified from being nominated for or elected as a member of council until after the next general election.

By-law establishing tax credits and rebates for contributions

93.17(1)    A council may by by-law establish a program that entitles a contributor who made a contribution to a registered candidate during a campaign period to

(a) a credit, of an amount equal to part of the contribution, against taxes that are imposed by the municipality and that are payable by the contributor; or

(b) a rebate of part of the contribution.

Contents of by-law

93.17(2)    A by-law under subsection (1) may, without limiting the generality of that subsection,

(a) specify the taxes against which there may be a credit;

(b) provide for the amount, or the means of determining the amount, of the credit or rebate of contribution;

(c) establish a maximum credit for contributions, or a maximum rebate of contributions, made by a contributor to all candidates in an election;

(d) impose terms and conditions on the entitlement to the credit or rebate; and

(e) provide for any other matter respecting the credits and rebates that the council considers necessary or advisable.

By-law establishing reimbursement of campaign expenses

93.18(1)    A council may by by-law establish a program that entitles a candidate to reimbursement of a portion of his or her campaign expenses.

Contents of by-law

93.18(2)    A by-law under subsection (1) may, without limiting the generality of that subsection,

(a) establish the campaign expenses that are eligible for reimbursement;

(b) provide for the amount, or the means of determining the amount, of reimbursement of campaign expenses;

(c) impose terms and conditions on the entitlement to the reimbursement; and

(d) provide for any other matter respecting reimbursement of campaign expenses that the council considers necessary or advisable.

Offence and penalty

93.19(1)    Every person who contravenes or fails to comply with any of sections 93.4, 93.6, 93.8 to 93.12 or 93.15, or the by-law passed under section 93.2, is guilty of an offence and is liable on summary conviction to a fine of not more than $5,000.

Time limits on prosecution

93.19(2)    A prosecution for an offence under this section may not be commenced later than six months after the day on which evidence sufficient to justify a prosecution for the offence came to the knowledge of the chief administrative officer.  The certificate of the chief administrative officer as to the day on which the evidence came to his or her knowledge is evidence of that date.

8           The centred heading "DISQUALIFICATION OF MEMBERS" is added before section 94.

9            Subsection 94(1) is amended by adding the following after clause (c):

(c.1) forfeits his or her seat under subsection 93.16(2);

10          The centred heading "TERM OF OFFICE, FIRST COUNCIL MEETING, OATH OF OFFICE" is added before section 99.

11          The centred heading "VACANCIES AND BY-ELECTIONS" is added before section 102.

12          The centred heading "TERM OF OFFICE" is added before section 106.

13          The heading for Part 4 is replaced with "CHIEF ADMINISTRATIVE OFFICER, DESIGNATED OFFICERS AND CODE OF CONDUCT FOR EMPLOYEES".

14          The following is added after section 131 as part of Part 4:

EMPLOYEE CODE OF CONDUCT

Employee code of conduct

131.1(1)    A council must establish a code of conduct for employees of the municipality that includes conflict of interest rules.

Content: conflict of interest rules

131.1(2)    The conflict of interest rules must

(a) set out the types of conduct that are prohibited, which must include prohibiting an employee from

(i) using information that is obtained as a result of his or her employment and that is not available to the public to further, or seek to further, his or her private interests or those of his or her dependants, or to seek to improperly further another person's private interests, or

(ii) using his or her position to seek to influence a decision of another person so as to further the employee's private interests or those of his or her dependants or to improperly further another person's private interests; and

(b) specify the procedure an employee is to follow if the employee suspects that he or she may be in a conflict of interest and the procedure for resolving a conflict.

15          Subsection 263(1) is amended by adding the following after clause (h):

(i) an election finance statement filed by a registered candidate in an election.

PART 3

AMENDMENTS TO CITY OF WINNIPEG CHARTER

S.M. 2002, c. 39 amended

16          The City of Winnipeg Charter is amended by this Part.

17          Subsection 31(1) is amended

(a) in the part before the definition "campaign expense", by striking out "sections 32 to 46" and substituting "sections 32 to 46.1";

(b) in clause (b) of the definition "campaign period", by striking out "returning officer" and substituting "senior election official"; and

(c) by adding the following definitions:

"financial institution" means a bank, credit union, trust company or other similar institution; (« établissement financier »)

"organization" includes

(a) a trade union, a partnership and an unincorporated association,

(b) a political party registered under the Canada Elections Act, or a constituency association of such a party, and

(c) a political party registered under The Elections Finances Act, or a constituency association of such a party; (« organisation »)

18          Section 33 is replaced with the following:

No contribution, expenses or borrowing until registered

33          No individual, other than a registered candidate, and no person acting on the individual's behalf, shall, for the purpose of electing the individual,

(a) solicit or accept a contribution;

(b) borrow money; or

(c) incur an expense.

Only individual residents may contribute

33.1(1)     No person or organization other than an individual normally resident in Manitoba shall make a contribution to a registered candidate.

Limit on contributions by individuals

33.1(2)     No individual shall make contributions that exceed

(a) $1,500. to a registered candidate who is a candidate for the office of mayor; or

(b) $750. to a registered candidate who is a candidate for the office of councillor.

Prohibited contributions not to be accepted

33.1(3)     A registered candidate in an election shall not

(a) solicit or accept a contribution from

(i) a person who is not an individual normally resident in Manitoba, or

(ii) an organization;

(b) solicit or knowingly accept a contribution that exceeds the limits established in subsection (2); or

(c) incur campaign expenses in respect of the election in excess of the limit prescribed in a by-law passed under clause 34(b).

Return of contribution

33.1(4)     On learning of any contribution accepted by or on behalf of a registered candidate contrary to this Act, the candidate's official agent shall immediately return to the contributor

(a) the contribution; or

(b) the amount of money equal to the value of the contribution.

Candidate's personal contributions

33.2(1)     A registered candidate may make a contribution

(a) to his or her own election campaign; or

(b) to the election campaign of another registered candidate.

Limit applies to contributions of candidate

33.2(2)     For certainty, the limit to the contributions established in subsection 33.1(2) applies to the contributions made by a registered candidate.

Loans only from financial institutions

33.3(1)     A registered candidate shall not solicit or accept a loan for the purposes of an election, except from a financial institution.

Prohibition making loan

33.3(2)     No person or organization, other than a financial institution, shall make a loan to a registered candidate for the purposes of an election.

Loans to registered candidates

33.3(3)     A loan made by a financial institution to a registered candidate is not a contribution.

Loan must be paid into campaign account

33.3(4)     A registered candidate shall ensure that a loan received from a financial institution is paid directly into an account that is listed in the application of the candidate to be registered.

Loan payments must be made from campaign account

33.3(5)     Payments on a loan made to a registered candidate must be made from an account that is listed in the application of the candidate to be registered.

Loan payments made in different manner

33.3(6)     A payment on a loan made to a registered candidate that is not made from an account that is listed in the application of the candidate to be registered is a contribution to the candidate made by the person or organization that made the payment.

No loans from registered candidates to others

33.4        A registered candidate shall not lend money raised for the purposes of an election to another person or to any organization.

19          Clause 34(a) is repealed.

20(1)       Clause 35(1)(e) is amended by striking out "the lender" and substituting "the financial institution that made the loan".

20(2)       Clause 35(2)(a) is amended by striking out "May 31 of the year following" and substituting "the day that is 210 days after".

21          Clause 37(h) is replaced with the following:

(h) any contribution accepted by or on behalf of the candidate that is contrary to this Act is returned to the contributor in accordance with subsection 33.1(4).

22          Sections 39, 40 and 42 are repealed.

23(1)       Subsection 44(1) is amended by striking out "May 31 of the year following" and substituting "the day that is 210 days after".

23(2)       Subsection 44(2) is amended by striking out "July 31 of the year following" and substituting "the day that is 270 days after".

24          Subsection 45(1) is amended by striking out "sections 33 and 35" and substituting "sections 33, 33.1 and 33.3".

25          The centred heading before section 46 of the English version is amended by striking out "PROGRAM" and substituting "PROGRAMS".

26          The section heading for subsection 46(1) is replaced with "By-law establishing tax credits or rebates for contributions".

27          The following is added after section 46 and before the centred heading that follows it:

CAMPAIGN EXPENSE REIMBURSEMENT PROGRAM

By-law establishing reimbursement of campaign expenses

46.1(1)     The council may by by-law establish a program that entitles a candidate to reimbursement of his or her campaign expenses.

Contents of by-law

46.1(2)     A by-law under subsection (1) may, without limiting the generality of that subsection,

(a) establish the campaign expenses that are eligible for reimbursement;

(b) provide for the amount, or the means of determining the amount, of reimbursement of campaign expenses;

(c) impose terms and conditions on the entitlement to reimbursement; and

(d) provide for any other matter respecting reimbursement of campaign expenses that the council considers necessary or advisable.

28          Clause 89(1)(c) is amended by striking out "and codes of conduct".

29          The following is added after section 89:

Employee code of conduct

89.1(1)     Council must establish a code of conduct for employees that includes conflict of interest rules,

Content: conflict of interest rules

89.1(2)     The conflict of interest rules must

(a) set out the types of conduct that are prohibited, which must include prohibiting an employee from

(i) using information that is obtained as a result of his or her employment and that is not available to the public to further, or seek to further, his or her private interests or those of his or her dependants, or to seek to improperly further another person's private interests, or

(ii) using his or her position to seek to influence a decision of another person so as to further the employee's private interests or those of his or her dependants or to improperly further another person's private interests; and

(b) specify the procedure an employee is to follow if the employee suspects that he or she may be in a conflict of interest and the procedure for resolving a conflict.

PART 4

CONSEQUENTIAL AMENDMENT AND COMING INTO FORCE

Consequential amendment, C.C.S.M. c. M257

30          Clause 37(3)(a) of The Municipal Councils and School Boards Elections Act is replaced with the following:

(a) the period that begins 42 days before election day and ends 90 days after election day, in a school division or a school district;

(a.1) the campaign period, as defined in subsection 93.1(1) of The Municipal Act, in a municipality other than The City of Winnipeg; or

Coming into force

31(1)       This Act, except sections 1, 13, 14, 28 and 29, comes into force on the day it receives royal assent.

Coming into force — section 1

31(2)       Section 1 comes into force on December 1, 2009.

Coming into force — sections 13, 14, 28 and 29

31(3)       Sections 13, 14, 28 and 29 come into force on a day to be fixed by proclamation.

 

 


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