By Stephen Vance, Editor
With Councillor Jim McPherson fresh off his mayoral campaign battle with Francis Richardson questioning why Richardson had chaired an in-camera meeting regarding the recent lawsuit filed against him personally which accuses the Mayor of abuse of power and failure to comply with conflict of interest rules, and Deputy Mayor Michael Traynor excusing himself from discussion of both the wind turbine moratorium resolution and a matter involving the Grey Sauble Conservation Authority, the question of conflict was front and centre at the Monday November 5 meeting of council.
But what constitutes a conflict, and what can really be done about it if an elected official fails to declare a conflict?
Determining when a conflict exists isn’t rocket science, but obviously there would be some grey areas. Both the Municipal Conflict of Interest Act and Meaford’s own Code of Conduct by-law are very clear on what a conflict is, and how it should be dealt with.
Here is what Meaford’s Code of Conduct by-law says:
It is the responsibility of individual Councillors to ensure that they are aware and trained in the application of the Municipal Conflict of Interest Act. The onus is on the Councillor to identify a conflict of interest, and shall take the appropriate action to identify the existence of a conflict in favour of his/her public duty.
a. A conflict exists when an individual is, or could be, influenced, or appear to be influenced by a personal interest, financial (pecuniary) or otherwise, when carrying out their public duty. Personal interest can include direct or indirect pecuniary interest, bias, pre‐judgement, close mindedness or undue influence.
b. Council members must appropriately resolve any conflict or incompatibility between their personal interests and the impartial performance of their public or professional duties in accordance with statutory requirements. When considering whether or not a conflict exists, it is important to consider whether there are any grounds for a reasonable person to think that a conflict exists.
As you can see from this, it would be clear that those that are now suggesting that Deputy Mayor Michael Traynor was in a conflict of interest situation in January when he voted against a resolution that sought to slow the progress of the development of wind farms until further research could be done, are correct.
Given that Traynor had already signed a contact with AIM Power to allow wind turbines to be constructed on his rural Meaford property months prior to that vote, and given that Traynor stood to gain financially from that contract, it can certainly be argued that he was in a position of conflict.
The question posed by McPherson about the potential conflict of Mayor Richardson is perhaps less clear. Richardson is being sued by a Meaford resident who claims that the Mayor abused his position of power and has violated conflict of interest legislation. So far we have been told that the municipal insurers and lawyers will be handling the case, and if that is the case, then Richardson doesn’t stand to gain or lose anything financially so there should have been no perceived conflict with him chairing the in-camera session that discussed this matter, right?
The fact is that the October 12 meeting to which McPherson was referring was the first meeting that this brand new lawsuit was discussed.
Certainly there must have been discussion about whether or not the municipal lawyers and insurers should even be handling this case since the lawsuit has been filed against Richardson personally, and the reasons cited for taking the legal action involve allegations of abuse of power and violating conflict of interest laws.
If that conversation didn’t take place, it should have, and Richardson certainly should not have been in the room for that discussion as that would have a potential impact on him financially, as if the municipal insurers don’t cover the costs of this new lawsuit, then Richardson will have to pay to defend himself.
We don’t know if the allegations in the lawsuit are true, they may very well be false, and we can’t know if there is a valid reason for the municipality through its insurers to cover the cost of this lawsuit against Richardson, but even if it is appropriate for the municipality to pay for this lawsuit, if at that initial meeting there was any discussion or debate about who should pay the legal fees, then Richardson should have declared a conflict of interest and left the room as the law demands.
So McPherson could very well be right that a conflict of interest existed, but then we don’t know what was said during that closed session of council.
The second dilemma with regard to conflict of interest issues when they crop up is what to do about them.
Since Meaford does have a code of conduct by-law, and since we do have a by-law on the books that says that our municipality shall have an Integrity Commissioner, then if a resident feels that there has been a breach of conflict of interest legislation by a member of council then it should be a simple matter of picking up the phone and requesting that there be an investigation.
Trouble is, though By-Law 53-2007 has a provision that states “An Integrity Commissioner shall be appointed by bylaw, report to Council, and shall be responsible for performing in an independent manner in accordance with the Municipal Act 2001. The Commissioner will investigate allegations and may at his/her discretion conduct investigations in accordance with the Public Inquiries Act (PIA),” we don’t actually have an Integrity Commissioner.
We did have one, but we don’t now, even though the by-law requiring one was never rescinded by council.
So if a resident has a concern relating to a member of council being in conflict of interest, their only option is to go to court.
In 9.1 of the Municipal Conflict of Interest Act we are told that “Subject to subsection (3), an elector may, within six weeks after the fact comes to his or her knowledge that a member may have contravened subsection 5 (1), (2) or (3), apply to the judge for a determination of the question of whether the member has contravened subsection 5 (1), (2) or (3).” Section 5 of that act outlines the duties of a member of council when they have a conflict.
We all know that going to court isn’t cheap, but with no Integrity Commissioner as a local go-to person to help residents with concerns about the conduct of members of council, the courts are the only option.
Let’s hope that our new council does the right thing and hires a new Integrity Commissioner.
Perhaps if we had one, this latest lawsuit against Mayor Richardson wouldn’t exist.