Does Windsor Have A Mayoral Mess Now Too

There is no doubt but that intense pressure was put on all parties to get a resolution of the mayoral matter in Detroit in order to allow that City to move forward. At a time when it was in crisis, the City could not afford to be in turmoil for a year or more while the various criminal and other charges outstanding against its Mayor were played out.

Now that the situation on the other side of the river is beginning to settle down, is Windsor about to experience its own mayoral crisis as well? I am afraid that it may happen unless decisive action is taken immediately to get a Court resolution of this matter.

According to the Windsor Star,

• “Mayor Eddie Francis cast the deciding vote Monday to stop trucks from entering westbound E.C. Row Expressway off Dougall Avenue following a two-hour debate and deadlocked 5-5 vote by city council.
  
  "We do have a serious safety issue as it relates to traffic and trucks collecting in the left-turn lane," he said. "These trucks are occupying the turn lanes and causing backups."

The Mayor did not have to be involved in this Agenda Item. He did not have to participate in the debate. He did not have to vote. He chose to do so. He made that decision knowingly and willingly. If he had not taken part, then Councillor Dilkens’ Motion would have been defeated on the basis of the tie. The Mayor’s vote broke that tie and in fact allowed the Motion to pass, 6-5.

The Mayor's vote improved the condition of Dougall for home owners and businesses in the vicinity. As a result, there is no longer a safety issue on Dougall Avenue, noise and damage to homes are reduced, and presumably the businesses on that stretch of Dougall will be able to retain their customer base and prosper.

To be quite blunt, I was surprised that the Mayor did not declare a Pecuniary Interest in the Dougall matter and that he did not leave the Chair when it was discussed. I was even more surprised when he voted, especially to break a tie. He has not voted in every case where there was a tie in the past.

The Mayor is very cautious in these matters. As the City Clerk wrote to me with respect to an issue that I raised on a Tunnel Duty-free Shop issue where the Mayor declared a Pecuniary Interest:

• “I can advise that the Mayor has always been cautious to take the high ground with respect to any possibility of an actual or perceived conflict of interest.”

Here are some examples that I was able to find in going through the City Minutes where the Mayor declared a Pecuniary Interest and did not participate in the Council matter. These declarations should raise a concern in your mind as it did in mine about the Mayor’s participation in the Dougall matter:

1. March 29, 2004
   
   Mayor Francis discloses an interest and abstains from voting on the Notice of Motion respecting Post-Employment Code of Conduct due to the fact that he is the only full time sitting member of Council who remains as a member of the Law Society of Upper Canada and intends to return to the practice of law. A provision of the motion may be interpreted to have a direct or indirect impact.
2. March 20, 2006
   
   Mayor Francis discloses an interest and abstains from voting on any matters related to Windsor Arena, as his father owns property in the vicinity of Windsor Arena.
3. April 27, 2006
   
   Mayor Francis discloses an interest and abstains from voting on any matters related to Windsor Arena, as his father owns property in the vicinity of Windsor Arena
4. July 10, 2006
   
   Mayor Francis discloses an interest and abstains from voting on Report No. 1 of the Planning Advisory Committee respecting "Gracinda and Peggy Ramos, rezoning, west side of Dougall Ave, north of Liberty Street, Business and Medical Office", as his spouse operates a Chiropractic business on Dougall Avenue.
5. October 10, 2006
   
   Mayor Francis discloses an interest and abstains from voting on Item No. 13 being the report of the General Manager of Public Works respecting "Notice of Motion presented by Councillor Halberstadt – Time Restricted Truck Route: Wyandotte Street", as his father owns property along the affected corridor.
6. January 15, 2007
   
   Mayor Francis discloses an interest and abstains from voting on Item No. 3 being the report of the Licence Commissioner respecting "CQ81-2006(C) – Bed and Breakfast Establishments", as one of the owners of a √property owned by a√ bed and breakfast establishment is also the landlord to the business of his spouse.
7. April 16, 2007
   
   Mayor Francis discloses an interest and abstains from voting on report no. 3 of the Planning Advisory Committee respecting "362216 Ontario Corporation, rezoning, 4881 and 4909 Riverside Drive East, nine-storey mature lifestyles (retirement) facility", as it would affect his area of residency.
8. August 13, 2007
   
   Mayor Francis discloses an interest and abstains from voting on Communication No. 12 dated June 25, 2007 entitled "Wyandotte Truck Route Time Restrictions" authored by the General Manager of Public Works, as his family owns retail along the affected corridor.
9. November 19, 2007
   
   Mayor Francis discloses an interest and abstains from voting on Item No. 6 being the report of the City Solicitor dated November 6, 2007 respecting “Council Resolution CR255/2007 – Amendment of the Conveyance Price,” as he resides in the general vicinity.
10. February 4, 2008
    
    Mayor Francis discloses an interest and abstains from voting on Report No. 119 of the Windsor Licensing Commission of its meeting held November 27, 2007 related to Bed and Breakfast and Guest House Establishments, as one of the owners of a property rented by a bed and breakfast establishment is also the landlord to the business of his spouse.
11. February 11, 2008
    
    Mayor Francis discloses an interest and abstains from voting on Report No. 2 of the Planning Advisory Committee respecting "South Windsor Properties Inc., rezoning, northeast corner of Dougall Avenue and Cabana Road West, to permit a business, financial (with a drive thru) or medical office, professional studio and personal service shop", as he resides in the vicinity of the affected area.
12. February 25, 2008
    
    Mayor Francis discloses an interest and abstains from voting on the Report of the Planning Advisory Committee respecting "South Windsor Properties Inc., rezoning, northeast corner of Dougall Avenue and Cabana Road West, to permit a business, financial (with a drive thru) or medical office, professional studio and personal service shop", as he resides in the general vicinity.
13. April 14, 2008
    
    Mayor Francis discloses an interest and abstains from voting on Item PAC 2 respecting "Salim Concrete, rezoning, 525 and 535 Cabana Road East, permit a one-storey medical/professional building with a footprint of 469 square metres and a total of 34 parking spaces", as he resides in the general vicinity of the affected area.

Looking at the other instances where the Mayor took a position and did not participate, he did so in general because:

• A provision of the motion may be interpreted to have a direct or indirect impact
• he resides in the general vicinity of the affected area/affect the area of his residency
• landlord to the business of his spouse
• family member owns property in the vicinity
• father owns property along the affected corridor/ family owns retail along the affected corridor.
• his spouse operates a Chiropractic business on Dougall Avenue.

I’m sure that it is obvious now to you what the problem is that could result in a mayoral mess in Windsor. Has the Mayor breached the Municipal Conflict of Interest Act by participating in and voting on the Dougall truck matter? After all, our Mayor should know better than anyone what the issue is. After all, our Mayor IS a lawyer.

There are of course two positions on this matter. It may well be, in the words of the City Clerk again:

• “the Municipal Conflict of Interest Act excludes matters that are remote and insignificant.”

Accordingly, the view to be taken is that the Mayor is acting out of an abundance of caution and that he had no legal obligation to declare a Pecuniary Interest in the first place.

That is a very reasonable position to take as is the opposite position that he was obliged to declare a Pecuniary Interest since:

• a provision of the motion may be interpreted to have a direct or indirect impact on him
• he resides in the general vicinity of the affected area and it affects the area of his residency
• the premises of the business of the landlord of his spouse is close to the affected area (The Clerk advises that his spouse is a tenant in a building that Mr. Abe Taqtaq has an interest in. The Mayor has a “personal acquaintance with Abe Taqtaq, his former campaign manager.”)
• his spouse leases property on Dougall Avenue where her business is located and it is along the affected coridor
• his spouse operates a Chiropractic business on Dougall Avenue.

The City is in a very precarious position. Our tax base may be eroding significantly with deficits perhaps likely or alternatively massive increases in taxes or cuts in service. The City is hurting badly as our main businesses are closing down and as our unemployment rate rockets to the highest in Canada. There are intense negotiations going on between the City and the Senior Levels. We are seeking new investors for the economic redevelopment of our area.

How can any of this take place if there is a cloud over the position of the Mayor and if we do not know whether someone at some time will bring a Court application to have him removed from his position whether successful or not?

While the situations are obviously not the same, given the fact that the situation in Detroit dealt with possible criminal matters, nevertheless our Mayor could be involved in extensive litigation on this issue that would detract from his ability to govern. In our civic condition, we need to know that the Mayor is spending his full-time on City business.

Of course, the reality is that it is unlikely that an individual will take action in this matter. It is very costly especially if the individual loses since court costs would have to be paid. There is of course no guarantee that this will not happen. If it does then the consequences can be horrific for our City.

The only solution that I can see that would bring this matter to a proper conclusion and in a very short period of time is for the Mayor and/or the City Council to choose a representative elector who should bring an application, a test case if you will, to have the issue resolved under the provisions of the Municipal Conflict of Interest Act.

This issue is simple: determination of the question of whether the Mayor has contravened the Act.

In this way, a Court can make a decision to clarify this situation once and for all to allow the City to get on with its business.