Thoughts and Opinions On Today's Important Issues

Friday, December 18, 2009

Friendship, The Conclusion (Part 5)

I trust that I, at least, have made you do some thinking over the last 5 days.

You will need to read right down to the end of this BLOG for you to appreciate how difficult a matter the friendship issue is and how it has been dealt with in other situations.

I will repeat again. Neither I nor any of Gord's "smear artists, conspiracy theorists, tire slashers, child harassers and professional moaners" brought up this controversy over friendship. The Integrity Commissioner as confirmed by the Mayor's statement did.

I am not suggesting any improprieties. No illegal activities, no pay-offs, graft, under the table deals or bribes. Nope, it is a very narrow matter; it is the issue of being a "friend" or perhaps a "business associate"that has now reared its head so we need to look at this concept carefully.

The friendship/business associate matter is not a legal concern for anyone except a member of Council. He/she has the legal responsibility to declare the pecuniary interest and follow what the Municipal Conflict of Interest Act requires.

Mr. Basse stirred up a hornet's nest as far as I am concerned with his still not released to the public Report on whether Councillor Jones should have recused himself and not been involved in anything to do with the CUPE matter due to his friendship with Jean Fox, the President of one of the CUPE locals.

I have spent some time looking at the Mayor and his friends and business relationships because of his key role in the City. More importantly, he confirmed the concern raised by the Integrity Commissioner about Councillor Jones and friendship
  • "City councillor Ron Jones has hired a lawyer to defend his interests against allegations of wrongdoing that may emerge from an investigation into hundreds of cell phone calls to CUPE union president Jean Fox during the 101-day strike by municipal workers.

    Jones insisted repeatedly Saturday there has been nothing “inappropriate” in his relationship with Fox — either before, during or after the strike...

    His calls and friendship with Fox date back years and many of the calls occurred around his prostate cancer surgery in February, while others focused on supporting Fox while she obtained a restraining order in court against an anti-CUPE protester, Jones said."

However, our Mayor claimed as I Blogged previously:

  • "The issue in front of us is discussions that were taking place with the head of CUPE in the middle of negotiations. That is an important distinction to be drawn here."

It would seem that the Mayor is of the opinion that even if the calls were purely "innocent," since there was an important City matter involved, that makes a big difference.

If Councillor Jones should have recused himself then from the CUPE strike matter because of "friendship," using Edgar's own logic, should the Mayor be required to do so on the border file, the Arena, the canal, the Zalev properties and so on? Clearly, if "friends" or "business associates" are involved in a City matter, using Edgar's perspective, what choice has he but to recuse himself and to permit new leadership from the City to take over.

As Gord wrote, perhaps this is exactly what Windsor needs, a "vanilla man" who, along with one or two other Councillors, would form an executive team who will not go to war against everyone but who might actually accomplish something:

  • "And make no mistake. Marra is a nice man. Polite. Well-spoken. Amiable.

    Those are fine qualities, even if Coun. Alan Halberstadt described him as "a bit vanilla." But is that what Windsor needs in 2010 and beyond, a nice guy to manage the corner office and keep everyone placated, if not happy? Under normal circumstances, I would say yes. Maybe it's time for a healer and soother who won't ruffle too many feathers and can get along with Liberal friends at Queen's Park."

Do you understand now why in the first BLOG I mentioned about the earth shaking and why I was optimistic finally. We would have people in charge who would view our issues differently and who would actually try to achieve a solution rather than constantly being at odds with everyone to our economic detriment!

What are we to conclude from this discussion? I think it is simple. We need a stated case to a Judge or a judicial inquiry to detemine how far the conflicts of interest policy spreads in our political arena.

Will it be expensive to do? I would expect so unfortunately. Here is what the inquiry into the issues surrounding Mayor Hazel McCallion may cost:

  • "But inquiry lawyer Will McDowell warned "a great deal remains unknown" about the issues and the commission's focus will evolve as new information emerges.

    The inquiry is now adjourned for preparatory investigative work.

    It is to resume no later than March 1.

    Its $2.5 million budget compares with the original Toronto Computer Leasing Inquiry into municipal corruption, which ran for 214 days, cost $20 million and had about 60 lawyers acting for the 22 parties.

    Cunningham said his inquiry will differ from such prominent ones as the Walkerton water scandal and Air India bombing.

    Those inquiries, he said, set out to determine what caused those tragedies and how they could have been prevented.

    "On the other hand, we set out to examine certain transactions and relationships," he said.

    "These may well be important matters, and they are certainly matters of contention."

    Cunningham framed the two broad areas to be investigated:

    The context, history and conduct of city business as it related to a purchase and sale of a 3.5-hectare parcel of land owned by OMERS that involved Peter McCallion and World Class Developments.

    (The deal involved private meetings between Mayor McCallion, the developer and OMERS, while zoning of the land was still before council. OMERS subsequently sold the land to the city, which in turn leased it to Sheridan College.)

    The circumstances surrounding an agreement that gave OMERS, a 10 per cent shareholder in Enersource, a controversial veto."

Friendship, business associates....does the Mayor now have to back out from a number of major transactions in this City? Given the Basse comments and Edgar's own words, Edgar (aka Eddie) has no alternative in my opinion but to recuse himself from some or all of the matters until the issues are clarified or risk negative comments from Windsorites during the entire election year until we know what the line is that should not be crossed.

Take a look at this story and see how something that is legal and innocent can take on an ugly and dirty side very easily:

  • "Friends in high places

    In Canada, business influence appears at all levels of government. The biggest single donors to the election campaigns of municipal leaders are property developers. Is it because property developers as a group are more concerned about the democratic process than others? It might be. However, it seems likely that the donations are also made because municipal politicians control the zoning and development of land.

    That's why a group in London, Ontario is asking questions. George Sinclair of the Urban League of London thinks there's a "troubling" connection between donations made to candidates for city council and a subsequent vote.

    Prior to the November 2003 municipal election Shmuel Farhi, president of Farhi Holdings Corp., made total donations of around $5,000 to about a dozen candidates. Two weeks later, Council voted 10 to six to allow Mr. Farhi's company to demolish the former home of baseball legend George (Mooney) Gibson. Of the 10 who voted in favour of the demolition at least six received donations from Mr. Farhi. Of the six who voted against, only one accepted a donation from Mr. Farhi.

    The developer told the London Free Press that his sole motivation "is to help people who spend a lot of time and effort to make the municipality a better place to work and live." Mr. Farhi added that the timing of his contributions was "pure coincidence."

Would that defence work for Mr. Farhi today in Windsor given his "friend" comment about the Mayor? Could our Mayor claim that his and his wife's relationship with a "friend" and "business associate" when dealing with City matters are of little concern? It is not an easy question to answer.

Take a look at this story commenting on a US Supreme Court decision . It is based on the US Constitution but the reasoning could be very applicable here. It shows how friends and business associate questions can be dealt with in a logical fashion. Of course, what is reasonable to one may not be reasonable to another. But it is a start:

  • "Judge Should Have Recused Himself in Case Involving Contributor, Court Rules

    The 5-4 ruling, authored by Justice Anthony Kennedy, is a victory for groups interested in curbing the influence of money on judicial elections.

    The Supreme Court ruled Monday that West Virginia's chief justice should have stepped down from a case involving his campaign's biggest financial supporter.

    The 5-4 ruling, authored by Justice Anthony Kennedy, is a victory for groups interested in curbing the influence of money on judicial elections.

    "In all the circumstances of this case, due process requires recusal," Kennedy wrote.

    Kennedy's opinion was joined by the court's more liberal justices.

    "There is a serious risk of actual bias when a person with a personal stake in a particular case had a significant and disproportionate influence in placing the judge on the case by raising funds or directing the judge's election campaign when the case was pending or imminent," Kennedy concluded.

    The case closely resembles the plot-line in novelist John Grisham's 2008 book "The Appeal."

    The case examined Justice Brent Benjamin's decision not to recuse himself from a $50 million lawsuit involving the man who spent millions of dollars to get him elected to the bench. The losing side in the West Virginia mining case before Benjamin argued he should have stepped aside for his "probability of bias" in the case, which involved Massey Coal.

    Massey's CEO spent $3 million in ads to help Benjamin's election.

    The Supreme Court had previously only recognized the need for recusals when judges have a personal financial interest or some other closely held personal connection to a case. Monday's opinion expands that reach."

Justice Anthony Kennedy speaking for the majority sets out the approach and how to handle matters:

  • "Under our precedents there are objective standards that require recusal when "the probability of actual bias on the part of the judge or decisionmaker is too high to be constitutionally tolerable...

    Not every campaign contribution by a litigant or attorney creates a probability of bias that requires a judge's recusal, but this is an exceptional case...

    Much like determining whether a judge is actually biased, proving what ultimately drives the electorate to choose a particular candidate is a difficult endeavor, not likely to lend itself to a certain conclusion. This is particularly true where, as here, there is no procedure for judicial factfinding and the sole trier of fact is the one accused of bias. Due process requires an objective inquiry into whether the contributor's influence on the election under all the circumstances "would offer a possible temptation to the average . . . judge to ... lead him not to hold the balance nice, clear and true..."

    Although there is no allegation of a quid pro quo agreement, the fact remains that Blankenship's extraordinary contributions were made at a time when he had a vested stake in the outcome. Just as no man is allowed to be a judge in his own cause, similar fears of bias can arise when--without the consent of the other parties--a man chooses the judge in his own cause. And applying this principle to the judicial election process, there was here a serious, objective risk of actual bias that required Justice Benjamin's recusal...

    But, as we have indicated, that is just one step in the judicial process; objective standards may also require recusal whether or not actual bias exists or can be proved. Due process "may sometimes bar trial by judges who have no actual bias and who would do their very best to weigh the scales of justice equally between contending parties." The failure to consider objective standards requiring recusal is not consistent with the imperatives of due process. We find that Blankenship's significant and disproportionate influence--coupled with the temporal relationship between the election and the pending case--" ' "offer a possible temptation to the average ... judge to ... lead him not to hold the balance nice, clear and true." ' " On these extreme facts the probability of actual bias rises to an unconstitutional level.

    The Court was careful to distinguish the extreme facts of the cases before it from those interests that would not rise to a constitutional level."

What was intersting in this case also is that another judge recused himself because of friendship and some photographs:

  • "Maynard withdrawing from Supreme Court case after vacation photos with Blankenship released

    State Supreme Court Chief Justice Elliott "Spike" Maynard will withdraw from the court's reconsideration of a decision that favored Massey Energy, a coal company run by his longtime friend Don Blankenship.

    "It is not enough to do justice - justice also must satisfy the appearance of justice," Maynard wrote in a brief memo filed today with the court.

    He added, "I have decided to voluntarily recuse myself from this case. I will recuse myself despite the fact I have no doubt in my own mind and firmly believe I have been and would be fair and impartial in this case. I know that for a certainty."

    Controversy erupted this month over Maynard's majority vote in the court's 3-2 decision that excused Massey from a $50 million verdict after photos surfaced showing the chief justice and Blankenship allegedly vacationing together in the Monte Carlo area...

    Caperton wanted Maynard off the case because of the justice's decades-long friendship with Blankenship. He also wanted Maynard to withdraw his majority vote from the decision...

    At least three of the photos show the men posing and smiling at seaside locations and sitting at an outdoor restaurant.

    It's unknown who took the photos, which were dated July 3-5, 2006 - a time when Massey had an appeal pending before the Supreme Court...

    In his memo released today, Maynard said he worries that the controversy that the photos have caused is the sole reason he's stepping aside.

    "Above all else, I am very concerned about how the public views this court," Maynard wrote. "Without question, the judicial branch of state government should always be held in the highest public confidence and trust. The mere appearance of impropriety, regardless of whether it is supported by fact, can compromise the public confidence in the courts. For that reason - and that reason alone - I will recuse myself from this case."

All this is very interesting you might think. Think about what I have written in the past 4 BLOGS and apply the facts to what the US Supreme Court said. Then if you think you have the correct answer, consider this photo in addition. It is of the Abe Taqtaq wedding party with Edgar as one of the important members of that party.

What is your answer now? What should be done on the many key areas in which the Mayor is involved? Should the Mayor at least on everything to do with the border continue to be the Voice of Council or recuse himself now because of the Taqtaq relationship. Or not!

In this instance you, dear reader, are the Chief Justice in the Court of Public Opinion in Windsor:

COURT CLERK: How say you. Is this one of those "exceptional cases or not? In this case YOU are the Judge"