The Local Governance Commission of New Brunswick (LGC) has issued an advisory telling local governments code of conduct and conflict of interest complaints cannot be dealt with in closed session.
Giselle Gougen, the commission’s chair, said the organization became aware many councils were holding these discussions and votes in closed session and classifying elected officials as employees of the local government.
“This is not permitted under Section 68 of the Local Governance Act,” the advisory reads.
Section 68(1) of the Local Governance Act sets out the criteria for a meeting to be held in closed session, which the commission said is being incorrectly interpreted by councils.
“The list does not include code of conduct by-law or conflict of interest provision violation allegations,” the advisory reads.
The commission said it appears these meetings are being done in closed session through section 68(1)(j), which covers “labour and employment matters, including collective agreement negotiations.”
It said councillors and mayors are not employees of the local government, which is also specifically outlined in the Act.
“As mayors and councillors are not employees of local governments, it is a violation of the Local Governance Act for local governments to be discussing and (or) deciding these matters in closed meetings,” the advisory said. “This practice also denies public accountability and transparency not only to complainants, but also to the broader public served by elected officials.”
The commission pointed to a recent decision of the New Brunswick Labour and Employment Board, which established that council members are not employees of the local government they represent under the Employment Standards Act.
It cited two examples of case law that reinforces the rules about council members not being employees.
In Eastern Charlotte, there were five code of conduct complaints between December 2024 and November 2025.
Chief Administrative Officer Jason Gaudet told The Courier all those meetings had been done in closed session, adding the final one in November was related to a staff member.
“Yes, we are planning on reviewing [our] code of conduct policy/procedural bylaws,” he said in a statement. “As with other municipalities, we were doing code of conduct complaints as we interpret the Local Governance Act.”
Gaudet said he was present at the Union of Municipalities of New Brunswick (UMNB) conference where most municipalities “immediately” had concerns and questions when the commission brought up the advisory.
A few of those, Gaudet explained, were that some complaints can be baseless or hold no merit and that the complainant is not limited to the municipality, meaning they can be made from anywhere in Canada.
The Courier reached out to the Town of Saint Andrews by email and in-person for the number of meetings related to code of conduct complaints that were handled in closed session within the last two years but did not hear back by deadline.
In a staff-led meeting, which is not recorded but is open to the public, Chief Administrative Officer Chris Spear said the province wanted councils to review the code of conduct bylaw.
He said Town Clerk Chris MacKinnon would draft a new bylaw and bring it back to council later this month.
In St. Stephen, one code of conduct complaint was filed against Coun. Emily Rodas. It was discussed in closed session on June 20, 2024, and the council determined no breach had been found.
“The appeal of this same matter was heard in closed session and council upheld the original decision,” said Chief Administrative Officer Jeff Renaud.
St. Stephen is also expected to bring the code of conduct bylaw before the council at the next Committee of the Whole scheduled for Jan. 14.
More training needed
Dan Murphy, the executive director of the UMNB, said this advisory leads back to training and education around the rules governing municipal elected officials.
“I think it underpins what we want to do,” he said, noting it comes just after the commission’s first annual report recommending mandatory training for staff and elected officials. “That’s something they identified, the need for mandatory training after the election, but also doing some of that pre-election work as well.”
An election for local governments and local boards is scheduled for May 11.
Murphy said there is a financial component to escalating code of conduct complaints to a third-party, which can be a barrier. In February, former Saint Andrews mayor Brad Henderson was cleared of a code of conduct investigation.
The subject of the complaint is not public, but could have been discussed in an open session, according to the commission. The advice filed by a lawyer ‘may’ be discussed in closed session, according to the LGC, under section Section 68(1)(f).
That section states a closed session ‘may’ be granted through “information concerning legal opinions or advice provided to the local government by its solicitor or privileged communications between solicitor and client in a matter of local government business”
However, the commission said that is where the exception ends.
“The entirety of council’s discussion of the matter must not be conducted in a closed meeting, and any decisions on these matters must be made in open meetings,” it said in the advisory.
Murphy said the size of responsibility placed at the feet of local governments continues to grow without the resources keeping pace.
“We’re all doing more with less, and [there are] more and more responsibilities finding their way onto municipal plates,” he said of the financial aspect of investigating complaints. “So for us, that’s a big piece of it, for sure.”
Every code of conduct or conflict of interest complaint is required to be reviewed by the local government, but it does not necessarily need to escalate to a third-party investigation.
“The more that we can spend time talking and training our officials on what they are, hopefully we won’t have to go through that, and hopefully they won’t be needed, because that’s really the best,” Murphy said.
In 2018, former Saint John mayor Mel Norton, who is also a lawyer with Lawson Creamer in the Port City, gave a presentation titled “How to Stay Out of Trouble.”
Norton said the presentation was intended to share some of the obligations of members of council.
He explained there might be a bit of misclassification on the part of councils when it comes to code of conduct.
“Probably what is happening is some councils are treating members of councils as labour or employment issues, and that is not permitted, it’s pretty clear that mayors and councillors are not employees,” he said, speaking with The Courier.
Norton explained this may be done to avoid embarrassment or conflict and keeping it private may diminish the impact.
Section 68(1) does say the local government “may” be closed to the public for the duration of the discussion, further outlining 10 specific reasons under which council can close the meeting to the public.
“If you see the word ‘shall’ you have to assume you have no choice in the matter, and if you see ‘may’ it assumes you have a choice, but you still have to act reasonably,” he said. “We have to kind of check our own personal interpretation of what something might say. We have to, first of all, recognize that our good intentions and personal interpretation does not trump the legislation.”
He said the closed door element may provide councils with short-term comfort, but comes at the cost of long-term trust.
Disclosure rules and conflicts
On the provincial and federal level, the rules around disclosure are much more strict and include contribution limits. Disclosure of shareholdings, investments and businesses are also not required at the municipal level. It is up to the individual councillor or mayor to identify the conflicts and declare them.
Councillors and mayors are required in New Brunswick to sign a Form 3 that indicates they have declared a conflict and when the conflict was declared.
The Courier reviewed the regular minutes of council in Saint Andrews for 2025 and found seven conflicts of interests declared by councillors or the mayor.
According to the Town of Saint Andrews, only five forms had been filed, and two declared by former mayor Henderson have not yet been made available.
At the Nov. 3 council meeting, Coun. Darrell Weare called out the fact the forms were not being filed appropriately.
“The legislation does require that there be a permanent record maintained by the clerk of all conflicts of interests,” he said. “To the best of my knowledge, that is not happening.
“I just want to make sure that, since I sit on the council, that the town is complying with legislation.”
Weare said he was told if a councillor had a serious concern about an undeclared conflict of interest, they could reach out to the New Brunswick RCMP.
The regular minutes of the St. Stephen council for 2025 were reviewed by The Courier and found five conflicts declared by councillors.
Only one Form 3 had been filed by Rodas on April 30. Minutes from November and December meetings were not available at the time of publication.
The Courier also reviewed the minutes of the 2025 regular meetings for Eastern Charlotte. One conflict was declared by Mayor John Craig in May and one Form 3 had been filed.
But the rules are subject to an individual councillor’s judgement.
Norton said there is a very clear definition of conflict of interest in the Act. Section (87)(1) outlines that definition.
“I would say generally that anytime there may be a risk that you could benefit directly or indirectly, and whether it’s actual or just perceived, the safe course of action is to remove yourself from that process,” he said.
Norton said a clear example is a contract with a company that you own or a company that you have shares in.
“That’s a clear financial benefit to you,” he said, adding it gets more remote when you involve extended family or friends in a small province like New Brunswick.
In some cases for councillors, he said, it can feel like a personal attack on their integrity, but it isn’t.
“This is simply a governance issue and what is the safest way to ensure good governance? Solid decision making and decisions that can’t be questioned or called into question because of some perception by anyone,” Norton added.
For most councillors, he explained, the good intentions are there. However, in smaller communities, he feels it is even more important to be clear about conflicts of interest.
“That makes it probably, though, all the more important to be extra diligent in eliminating the risk,” he said. “Yes, I looked, it’s probably not a true conflict, but there might be a perception of it.”
He said while this might mean an individual councillor is not at the table for every decision, it does encourages trust in the system and fosters public confidence.
Norton said it is imperative councils keep up-to-date Form 3s.
“Without it, there may not be a record,” he said. “Maybe the minutes don’t get recorded properly. Maybe there is some gap, but it is a proactive step that guarantees you’re going to be safe.”
He said the consequences for not declaring conflicts and keeping records are very real.
“The more you fail to declare conflicts of interest, the more you fail to file those forms, the greater risk that you personally, as a member of council, face,” he said.
Councillors could be barred from re-offering, face financial penalties, and even be removed from a sitting council, Norton explained.
“At the end of the day, these members of council, they’re trying to provide and deliver service and value for the greater good of their communities. Why risk all of that and the value that that brings over the long term?”
He said at the end of the day, more training is needed.
“We know that poor training leads to poor results,” he said. “Probably what we’re experiencing is, hopefully, some growing pains with adapting to the new municipal models we have in New Brunswick, but probably what it also says is that there needs to be constant education for members of council.”
Norton doesn’t believe the rules should be tightened on disclosure of assets at the municipal level, but said it needs to be about robust participation.
“From my perspective, the greater good comes from having that increased rate of participation and voter turnout, and all the things that are really near and dear to having a great municipal democratic [process] in our province.”
