C-029 - Conduct Authority Decision

The Appellant and her husband were both RCMP members and served at different locales in [X] Division. The Appellant became involved in a sexual relationship with a Staff Sergeant who was her superior, with whom she had been working on a sensitive file. The affair lasted for months before it was discovered and reported to an Inspector. The RCMP initiated Code of Conduct proceedings against both the Appellant and the Staff Sergeant with whom she had been involved in a sexual affair. The record before the ERC did not contain information about the outcome of the Code of Conduct proceeding against the Staff Sergeant.

Three allegations were made against the Appellant. First, she had a “romantic” relationship with a superior, contrary to section 7.1 of the Code of Conduct. Second, she violated RCMP Conflict of Interest policy by failing to promptly report that sexual relationship, contrary to section 8.1 of the Code of Conduct. Third, she consumed alcohol on Force property, contrary to section 7.1 of the Code of Conduct. After filing submissions and attending a Conduct Meeting in which she admitted the allegations, the Respondent found the allegations to be established. She imposed against the Appellant a forfeiture of 160 hours of annual leave for Allegation 1, a forfeiture of 40 hours of pay for Allegation 2 and a reprimand for Allegation 3. She further imposed a period of ineligibility for promotion and directions to complete training and to attend counselling/treatment. The Respondent raised particular concerns with the repetitive nature of the Appellant’s conduct and with the facts that it was contrary to clear direction and placed an investigation at risk.

The ERC addressed all the Appellant’s arguments on appeal and found that the Respondent did not contravene a principle of procedural fairness, err in law or make a clear and overriding error of fact. Firstly, none of the Appellant’s objections to alleged procedural fairness breaches were made at the earliest possible opportunities, all of which were before and in some instances well before the Respondent issued her decision. It further was unclear if certain of the alleged actions could be viewed as procedurally unfair at all. Secondly, the Respondent did not err by basing Allegations 1 and 2 on sections 7.1 and 8.1 of the Code of Conduct, respectively. It was evident from the Code of Conduct and the RCMP Conduct Measures Guide that sections 7.1 and 8.1 were appropriate in the circumstances. The Respondent also did not break the rule against “multiplicity” by addressing the Appellant’s improper workplace relationship through two allegations instead of through a single allegation, as the allegations dealt with different types of conduct and had to be evaluated differently. Thirdly, the Respondent’s decision did not contain a clear and overriding factual error. The Appellant’s beliefs that RCMP members should not be made to report their extramarital workplace affairs, or expected to know relevant RCMP authorities, were not acceptable bases for interfering with the decision. Moreover, the time frames placed in the Allegations were not problematic. Lastly, the Respondent applied the right test in ordering conduct measures, and the financial forfeitures she chose to impose were at the low or lowest ends of the applicable continuums set out in the RCMP Conduct Measures Guide.

The ERC recommended that the appeal be denied.

The Commissioner’s decision, as summarized by her office, is as follows:

I am persuaded that the Respondent misstated evidence, misinterpreted the IWR Policy, and misapplied commentary in the Sexual Misconduct section of Discreditable Conduct in the CMG. First, section 1 does confirm that the Code of the Conduct sets out the responsibilities and the standard of conduct for all members both on and off-duty. Moreover, the Respondent failed to explain how the consensual relationship “posed significant risk to the RCMP of civil liability”. The Appellant was neither a supervisor nor a person in authority in the circumstances of her relationship with the Staff Sergeant. The Appellant did “ignore” her obligation to report the relationship, but that is precisely the basis of Allegation 2. Lastly, the Respondent’s reliance on the CMG commentary for Discreditable Conduct (pages 56-58) and, specifically, the summarized version of the disciplinary board decision in Appropriate Officer “X” Division and S/Sgt. “X”, 11 (AD) (4^th) 327, and the obiter statements made by the board completely disregards the fact that the subtitle of the CMG section is “Abuse of position (intimate relationship)” and the discussion and cases all concern supervisors abusing a position of authority to induce a relationship with a subordinate resulting in an “improper relationship” whether consensual or not. The CMG does not impose additional prohibitions on members beyond those set out in the RCMP Act, the Code of Conduct and the IWR Policy, and surely the test for Discreditable Conduct demands more than a subjective moral compass in the absence of a disrupted workplace, or a statutory or policy violation. The appeal is allowed in part. Allegation 1 is deemed not established and 160 hours of annual leave are to be returned by the Respondent forthwith.