"People who are in positions of power and influence must make sure their private fundraising does not rely on the metaphorical "muscle" of perceived or actual influence in obtaining donations." Janet Leiper
AFTER he endorsed the report of Toronto Integrity Commissioner Janet Leiper, Ontario Superior Court Justice Charles T. Hackland quoted from it in his own judgment of a lawsuit against Toronto Mayor Rob Ford.
The suit was filed by municipal voter Paul Magder, in the belief that Ford was in a conflict of interest when he used city stationery to solicit donations from "lobbyists and corporate donors" for his private football foundation.
In declaring for Magder, Hackland said, ". . . I have concluded that [Ford] contravened s.5 of the [Municipal Conflict of Interest Act] when he spoke and voted on a matter in which he had a pecuniary interest at the meeting of Toronto City Council on Feb. 7, 2012."
The pecuniary interest at issue was not the donations themselves, but the fundamental fact that Ford stood to benefit if council decided he did not have to repay the $3,150 to the donors as Leiper had ordered.
Hackland's decision has relevance to events on our own doorstep, albeit the rules are different. Toronto council relies on four pieces of legislation for guidance - including the conflict of interest act and the city's Code of Conduct - whereas the conflicts of interest that might occur here are governed by Division 6 of the 2003 Community Charter.
Despite the details it provides, however, Section 105 (2.c) of the charter does no favours to either an elected member or citizens when it comes to "lawful contributions" made during election campaigns. The charter's failure to define donor types, or to restrict the size and timing of donations, allows conflicts to arise that embarrass both donors and elected officials alike - and that inflames community suspicions about the motivations behind those donations.
Case in point: In Jan. 2011, the Onni Group presented an application to the City of North Vancouver for redevelopment of the Safeway site at 13th and Lonsdale that more than doubled existing zoning and blew apart the guidelines of the official community plan.
In May 2011, council balked and asked the developer to go back to the drawing board, reduce the density, eliminate bulk and shadowing effects, address traffic concerns and to submit a proposal more acceptable to the neighbourhood and to council.
The Onni Group complied and held community meetings to assist in that process.
By Oct. 2011, council was in full election mode. Candidates for mayoralty and council seats were on the hustings drumming up votes and campaign donations.
Post-election candidate disclosure statements revealed that, beginning Oct. 24, RPMG Holdings (the Onni Group) donated $5,000 to mayoralty candidate Darrell Mussatto, $1,500 each to council candidates Linda Buchanan and Cheryl Leia and a further $1,000 to former councillor Bob Fearnley. Other donations may also be linked to the project.
Under Section 105 (2.e) of the charter, those amounts were legally donated and accepted, at a time when Onni was in the ongoing process of seeking council's approval for an extremely controversial development application.
The developers presented their revised proposal to a sell-out crowd at a public hearing last month on Nov. 19. Although different from the original plan, density and project layout remained indigestible to many in the community.
Furthermore, controversy over the bulk sign-up of Onni supporters on the first three pages of the speakers' list before the posted opening time of 5 p.m. and the mind-numbing length of a hearing Mussatto allowed to run to 12.45 a.m. led many to claim they were being bullied into submission.
Thankfully, council deferred debate of the bylaws until Nov. 26.
Charter rules governing public hearings dictate that no new material may be presented after the hearing is closed, so some residents were ecstatic when council voted 4-3 to hold a second hearing in January.
Then, on Nov. 26, amended rules changing the sign-up time to 4: 30 p.m. were posted to the city's website - a week after the hearing.
Last Thursday, Coun. Don Bell indicated he planned to rescind his vote to approve second hearing. Then, prior to Monday's council meeting, he asked that his motion to reconsider be withdrawn, meaning his support for a second public hearing would stand.
Onni now says it will withdrew its application.
However the story unfolds, public hearing rules and the charter need to be clarified. The City of Surrey has already seen the light. On Nov. 26 it announced that its own public hearing on a casino application was being deferred until mid-January and that "those wishing to speak will be required to state their names and addresses for the record."
Council might just want to review the two-year history of the Onni application in the light of Justice Hackland's quote from Ontario Divisional Court Justice Lederer who observed, "Those who are elected and, as a result, take part in the decision-making processes of government, should act, and be seen to act, in the public interest."
