Thoughts and Opinions On Today's Important Issues

Tuesday, October 20, 2009

Reasonable Apprenhension Of Bias

It seems the Governor and Legislature in Michigan have finally had enough of DRIC. If anyone wants another reason to end the boondoggle, then here it is from a legal perspective.

Wikipedia gives this definition:
  • "In Canadian law, a reasonable apprehension of bias is a legal standard for disqualifying judges and administrative decision-makers for bias. Bias of the decision-maker can be real or merely perceived.

    The test was first stated in Committee for Justice and Liberty v. Canada (National Energy Board), [1978] 1 S.C.R. 369:

    ...the apprehension of bias must be a reasonable one, held by reasonable and right minded persons, applying themselves to the question and obtaining thereon the required information. . . . [The] test is "what would an informed person, viewing the matter realistically and practically and having thought the matter through conclude."

I would expect that there must be a similar legal principle in the US.

Obviously, that is why the Consultant Disclosure Statement was prepared and signed for the DRIC project above. The head consultant is stating that it has no financial or other interest in the DRIC project other than its professional reputation.

Everyone should expect that the consultants hired for the DRIC study should provide a professional and unbiased perspective to a project for which they have received millions of taxpayer dollars in fees and for which billions in taxpayer dollars will be spent.

Moreover, organizations like DRTP, Mich-Can and most especially the Ambassador Bridge Company, which owns the existing bridge which may be bankrupted by a new DRIC bridge if that bridge takes away most of its traffic as the consultants have projected, should at least have confidence that the review and recommendations by the consultants were objectively arrived at.

In other words, there was a fair process.

Accordingly, please explain how this advertisement placed in a Detroit newspaper as an advocacy ad for DRIC just before the Michigan Budget hearings ended maintains the "unbiased" nature of the consultants' work!

Here is the clear advocacy section:

Compare the firms in this ad with those named as consultants in the Consultant Disclosure Statement. Do you notice the similarities?

I noted URS because I assume there is a relationship with the Canadian DRIC consultants. Wilbur Smith Associates, a private consulting firm, is writing the environmental impact statements for both the Blue Water Bridge and Peace Bridge plazas, sites that compete with the Bridge Company. They also did the investment grade traffic survey for Canada, the one not released yet.

I have suggested for a very long time that the DRIC process was a farce designed to terrorize the Bridge Company into selling out to the Governments cheaply in our corridor and because they are a thorn in the side in all of the Central crossings.

In my opinion, the consultants by being signatories to the ad have put themselves into a position where they can be viewed as advocating for and supporting one proponent over all others. Their job for which they were paid millions was to analyse and report, not advocate. They crossed the line.

The consultants should have no interest in what the Governments ultimately decide... or were they hired to be advocates as well which would further contaminate the process?

Remember this case involving the Paterson/Francis press conference where L. Brooks called Eddie an [Expletive deleted]

  • As an example, can you believe this? MDOT’s Mohammed Alghurabi said this when sending out the notice about the L. Brooks Patterson/Eddie Francis Press Conference

    •“I understand there will be a joint press conference in Detroit tomorrow morning by the Oakland County Executive office and Mayor Eddie Francis of Windsor…

    I was made aware of the news release this morning, wanted to share the information with you in advance of the press conference.”

    Factually, I am sure that everything that he said in there is absolutely true. However it might be interesting to ask him some questions about how this press conference got set up in the first place and what the role of MDOT was.

    How about this confusion:

    •“Patterson’s spokesman Robert Dustman said Joe Corradino of the Corradino Group handled the invites. The Corradino Group is a consulting firm working with MDOT on the project.

    Corradino said Dustman was responsible for the guest list.

    “I didn’t handle any of that,” Corradino said.

    Francis, Windsor’s mayor, also said Corradino put the list together.”

    Joe actually took part in the press conference by helping to answer a question. Does Joe bill MDOT for his time there or was he there just for fun?"

Accordingly, I would have thought that a reasonable and right-minded person could reasonably conclude that consultants who are advocates for a DRIC Bridge could not have prepared an independent, unbiased and objective analysis. They have put themselves into a conflict position.

Remember, that conclusion need not be true. They may be acting in a completely innocent and honest fashion believing that the DRIC Bridge is absolutely essential now and must be built. The test though is not just "real" bias but "perceived" bias as well ie a reasonable apprehenion.

If I am right, the remedy would seem to be to me that the consultants have to be disqualified and their reports thrown out. Considering that it involves Corradino and URS, the main consultants for DRIC on both sides of the river, it suggests to me that the whole DRIC process needs to be started all over again.

Just what we need now. An Administrative law lawsuit over bias to delay matters for years! Or is this the Governments' way out?

As I told you, the Bridge Company opponents just keep on doing it to themselves!