Monday, 22 July 2013
ABUNDANCE OF CAUTION
Rod Mickleburgh published an article on the “Squeaky Clean” Mayor of Vancouver in today’s Metro newspaper in which he says:
“Local reporters have become so desperate for even a grain of dirt on Mayor Squeaky Clean, they’ve tried to spark a furor, anything, over Gregor’s decision to sell his $1.9-million family home and move to a smaller place, which, get this, is close to a planned bike lane! Oh, the conflict of interest. Oh, the humanity!
I guess the mayor shouldn’t really live anywhere, because some city hall decision might affect him, like sewage flow or garbage pickup.
*** Even though city staff told him there was no problem, the mayor nevertheless resorted to that good old 14th-century word “recuse” and opted to refrain from voting on any bike path that might pass within six miles, or whatever it is, from his brand-new residence.
Why? “Out of an abundance of caution,” His Worship intoned. Just no fun at all.”
It was not just an abundance of caution that dictated the Mayor’s position. It was the Vancouver Charter. It made him act on the pain of disqualification from office. My guess is that the two wheeled Mayor is not a 14th century scholar. He used the word “recused” because that is what modern lawyers say. At some point in the process he got all lawyered up.
Section 145.2 of the Vancouver Charter SBC 1953, C. 55r requires that the Mayor, if he considers he has a “direct or indirect pecuniary interest in a matter, or another matter that constitutes a conflict of interest, he must declare this and state in general terms the reason why he considers this to be the case..
Section 145.3 says that if he has a direct or indirect pecuniary interest, whether he has declared it or not, he must not:
(a) Remain or attend at any part of a meeting during which the matter is under consideration,
(b) Participate in any discussion of the matter at such a meeting,
(c) Vote on a question in respect of the matter at such a meeting, or
(d) Attempt in any way, whether before, during or after such a meeting, to influence the voting on any question in respect of the matter.
(3) A person who contravenes this section is disqualified from holding an office described in, and for the period established by section 141(2) l [disqualification], unless the contravention was done inadvertently or because4 of an error in judgment made in good faith.
There is no problem with the Mayor selling his house. There is a problem if he enters into a deal to buy a house, the value of which will be affected by a decision that will change the character of the main street nearby. If he does any of the things listed in s. 145.3 he may be disqualified. It does not matter if the house is in his wife’s name, or is held by him in a corporation. He will have a “direct or indirect” pecuniary interest if it is reasonable to assume that its value will be affected. The value of properties on or near Pt. Grey Road has been front and center in discussions relating to this matter.
The Mayor has not disclosed the exact address of his house. His handlers say that this is to protect his privacy. Once his address is disclosed, and the title searched, the question will be: “When did he make his offer to purchase? Did he remain in any part of a meeting in which bikes and Point Grey Road was under consideration? Did he vote on it? Did he try to influence the vote? If so, he would have already been disqualified from holding office unless it was all an accident or an error in judgment made in good faith.
Conflicts of interest are serious business. Rob Ford was removed from office by a trial judge because of an alleged conflict. A voter accused him of using his position to raise money for a charity for children that he sponsored. The Court of Appeal held that he had no pecuniary interest. The Supreme Court of Canada refused to hear a further appeal.
Mr. Mickleburgh, who co-authored with the Mayor’s close colleague, Geoff Meggs, a book on former premier Dave Barrett, seems to distinguish the case of Rob Ford from that of the Mayor on the grounds that Gregor is the “The handsomest, smilingest, bike-ridingest, urban-orchardingest chief magistrate in the city’s history while Rob Ford is a fat slob. Ford won not because or in-spite of his prettiness or lack thereof but because there was no conflict.
The test for conflict of interest was stated in the case of Old St. Boniface. Sopinka J. said this:
*that the interest might influence the exercise of that duty. This is commonly referred to as a conflict of interest (para**It is not part of the job description that municipal councillors be personally interested in matters that come before them beyond the interest that they have in common with the other citizens in the municipality. Where such an interest is found, both at common law and by statute, a member of Council is disqualified if the interest is so related to the exercise of public duty that a reasonably well-informed person would conclude that the interest might influence the exercise of that duty. This is commonly referred to as a conflict of interest (para. 55)
Once an enterprising reporter finds out where the Mayor's house is and when he bought it, we will find out whether there are any investigative journalists in town.