Thoughts and Opinions On Today's Important Issues

Tuesday, February 16, 2010

Daycare: "It is of fundamental importance that Justice should not only be done, but should manifestly and undoubtedly be seen to be done."

It is not what Doug Schmidt of the Star would have us believe at all:

  • "For any Windsor politician these days, just being a friend can mean being accused of a breach of trust and of a serious transgression, ethical if not legal."

No, to me the issue is not JUST being a friend and never was. If it was that, then it would be easy. The issue is how Edgar (aka Eddie) framed it. As I Blogged:

  • "Friendship" became an issue for conflict of interest all of a sudden.

    Then our Mayor confirmed it by helpfully chipping in during a TV interview:

    •"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 is even more complicated than that too since we have to deal with both "real and apparent" as you shall see following.

A very interesting BLOG by Doug Schmidt on his Star BLOGsite "When Friends Make Enemies Through Conflict" I am not sure what the headline means but the BLOG interested me

Apparently, according to Doug, "anonymous e-mails and an obliging blogosphere" are the cause of problems over daycare. According to Gord, bloggers along with "conspiracy theorists, sound-off twits, Windsor haters and small-town axe grinders" are the ones who "vilify" the Mayor.

I cannot believe that in such a short time so few Bloggers have achieved that much power in this City. Do you think that so few Bloggers with relatively few readers have been able to out-muscle the traditonal media in Windsor.

Come on Doug, get real.

Our "power" if we have any is providing background research and analysis on stories that the traditional media cannot afford to do any longer. Your parent company's financial problems are one of the obvious reason why not. We are here day-after-day calling out politicians on what they are saying using their own words out of the past and trying to put into perspective what the impact of their proposals is for Windsor's future.

We are NOT Messengers or cheer-leaders or non-attendees of meetings like the Lewenza one or the daycare one because it might give a different spin on what is going on here. We give our opinions based on our varying perspectives. In general, I believe that Windsorites are well-served by what Bloggers in town write since they get an alternative perspective to consider.

"An obliging blogosphere, screamed out" that was pretty nasty. To whom are we obliged, Doug? What are your actual facts to back it up or is it mere gossip, innuendo and made-up stuff? I can speak only for myself when I say that I am not obliged to anyone on this story.

I find it amusing nonetheless that Doug conveniently did not mention that Eh-Channel News broke the story to make it public and that his paper did nothing it seems to follow up on the story at all...until their Saturday paper. Please don't tell me that no one at the Star heard the rumours. What did the Star do to check them out as the only newspaper in town to enlighten Windsorites?

I saw the same website that Daryl Newcombe mentioned in his story. Did Doug? I am showing below parts of the page:

What is the most obvious thing that jumps out when looking at the site. Clearly in the context, the name "Warsh."

And she is not in an insignificant position either and has had a key position for some time. Here is how she was described in 2005:

Doug has set out what the real concern is: Is there a violation of the Code of Conduct. Doug can try to change what the focus is by making comments like "cashing in as a result" or "pocketing profits from this outrage. That inflammatory choice of language does not change the issue:
  • "...common sense should prevail. Preferably, Ronna should have said during the debate that she knows someone in the daycare sector, but even if she didn't, it behooves those who detect something fishy to find a fact or two before throwing out innuendo, and even then, restrict the commentary to what they actually know."
If she had, what would the answer have been?

Doug does not seem to get it. It is the obligation of the Members of Council and staff to comply with the Code of Conduct. "Preferably" does not come into the picture at all. The relevant fact or two was made public. What innuendo is he talking about?

Frankly, given the highlighted comment above, why is Doug dumping on others? It seems to me that his use of "preferably" takes away from the force of whatever argument he is making. Isn't he really questioning what went on too?

Is he as a Blogger, not a reporter now, part of a different "obliging blogosphere" with language such as "conveniently excuse herself from the divisive daycare debate and vote (hmmmh)" and "who also shied away from the daycare debate 'cos a relative dabbles in city daycare" in relation to a couple of Councillors. What am I to take from what he is suggesting? Being burned or seeing someone get burned is surely a good reason to act out of an abundance of caution.

Bloggers did not make "friends" the issue in Windsor. The ill-started Commish Investigation respecting Jones/Fox did, assisted by the Mayor's comment.

Doug makes a flippant remark about Councillor Dilkens and Ms Warsh being Facebook friends to make a point I assume by mocking:
  • "I've learned from a source, the two are friends. That is, Facebook friends, but that means they're friends or at least friendly to each other, right? And that's just plain wrong, right?"

But Doug forgets what the City's Code of Conduct says and the standard expected:

  • "The codes of conduct should go beyond the minimum standards of behaviour and set out the highest ideals and values toward which all public servants should be working."

The Commish wrote and clearly it must apply to staff based on the above even though the Commish's statutory powers are in relation to Council:

  • "The public expects the highest level of integrity and ethics from its elected municipal officials and often hold these officials to a higher standard than others in private industry."

It may well be that there are new rules in Windsor dealing with conduct and this phrase may now be the new norm that has to be adhered to:

  • "Members of Council and City staff must be like Caesar's wife, above suspicion."

Doug accuses people of grabbing

  • "a piece of rumoured hearsay and then throw it out there, bolstered by further gossip, innuendo and made-up stuff."

Then, he gives us some advice, which is frankly good advice:

  • "a good defense is always being able to back up what you write and say with the actual facts...

    Those who wanna play citizen journalist, by all means, go for it. The more that's dug up and the more the light is shone into the dark nooks and crannies of the body politic, the more informed the citizenry and the better off our community is. But play by some of the rules."

In my opinion, I have tried to be responsible on how I Blog even when I am very critical. I did not use the "M" word in relation to the Mayor while a Star Blogger has. I too have had vicious names used against me in the Blogosphere. Sure I have nicknames for people but I do not think that they have crossed the line.

I am aware of what the concept of "Responsible communication on matters of public interest" is. I have tried hard to follow the ideal even before it has been enshrined.

The daycare closing issue is an emotional one with strong feelings on all sides. It has just been increased by more than a notch. Let me try and put it into a context considering what is going on

By the way, there are many different aspects to it other than the daycares themselves.

You may want to read Chris Schnurr's BLOG that gives a very interesting perspective in regard to some of the legal issues arising

Councillor Halberstadt wrote a BLOG about a Municipal daycare reorganization that would have seen the at or near-capacity centers kept open. He also discussed in some detail what the implications would be for City Hall if the daycares closed. He also wrote this that puts the daycare issue into the political arena:
  • "As you can see the toll of restructuring is excruciatingly high in both human and dollar costs, although there is no doubt Monday’s decision was politically shrewd. It made taxpayers and the long-suffering, non-city run daycare operators happy. The CUPE supporters who raised hell are not going to support the five aye-vote Councillors anyway in October’s election.

    The special-interest, city daycare community in Windsor is not large, perhaps 350, and many of those parents are from notoriously low voter-turnout neighbourhoods. As for the county, there’s no city voters out there.

    Put it all together and you get what you got Monday night – a blunt instrument."

An interesting turn of events.

  • "Warsh weighs libel suit over daycare charges"

To be direct about this, as I have Blogged before, the decision to do an investigation into the "friend" relationship between Councillor Jones and CUPE's President, Jean Fox has opened up a Pandora's box. Did the mere "friendship" between Jones and Fox require that he recuse himself from any involvement in the CUPE matter?

It is a shame in one sense that Earl Basse's Report was not published since he lacked jurisdiction to even investigate the matter. His report would have provided significant guidance for a case like this one involving Ms Warsh.
Ms Warsh set out the concern in her own words in the Star article.
  • "she will "do what I need to do" to assure citizens that one of Windsor's top bureaucrats "would never violate the code of conduct."

The question is not at all dissimilar to that asked in the Jones/Fox matter. The issue there, as here, was not whether the people involved are honourable or not. The assumption has to be that they are or they would not be in their positions. The question is limited, as Ms. Warsh suggests, to whether there was a violation of the code of conduct.

Did her relationship with her sister-in-law who worked for a day care centre mean that she should have recused herself from any involvement in the daycare matter? Did that recusal apply to the co-authoring of the report only or daycare generally? Is there a difference if her relative was not an owner but a "primary contact?" What if it was a friend who was an employee or senior officer or an owner? What if it is both?

I am not a big fan of Earl Basse as our Integrity Commissioner as my BLOGs show, but in this situation, I think he got it mostly right in his Annual Report. It may help explain the confusion about why we are in this mess as well:

In his Preamble he stated:
  • "The public expects the highest level of integrity and ethics from its elected municipal officials and often hold these officials to a higher standard than others in private industry.

    Pursuant to Section 223.3 of the Municipal Act, Council for the Corporation of the City of Windsor developed a Code of Conduct to encourage high standards of conduct on the part of all government officials. Adherence to the standards set out in the Code applied to Mayor and Council as well as the members of the Local Boards to protect and maintain the City of Windsor's reputation and integrity."

This is all good stuff. It sets out the very high standards that people in Windsor expect of our officials. I understand that Basse's mandate does not extend to staff but it is the principles he sets out that I am concerned about.

The difficulty arises is applying these lofty goals in an actual fact situation. Basse said the following as well which may well be the cause of problems with our Code of Conduct:

  • "Code of Conduct:

    The Code of Conduct is a dynamic document that must be continually reviewed to ensure it meets the needs of the City of Windsor. Throughout the period, the Integrity Commissioner completed a full review of the Code of Conduct.

    There are no standards set for developing or creating a Code of Conduct. Council is guided by codes developed in other municipalities as well as by the report by Madam Justice Denise Bellamy on the Toronto Computer Leasing Inquiry released September 12,2005. Council has incorporated the Bellamy Inquiry into its Code of Conduct.

    I found the Code of Conduct to be complete. The Bellamy Inquiry was specific to Toronto and Council made provisions for that within its Code of Conduct. However, by attaching the Bellamy Inquiry Recommendations verbatim as an Appendix to the Code, there is duplication and some people have experienced confusion. The Code of Conduct should be re-written and the recommendations from the Bellamy Inquiry incorporated as an integral part of the Code and not as an Appendix."

Then dealing specifically with the issue of "friends," he said the following:

  • "Since October 2009, the Office of the Integrity Commissioner has received four complaints for investigation. These complaints, like the majority of the complaints received, typically relate to conflict of interest.

    This is an area of importance and councillors must be vigilant that their relationships with people are not seen as an apparent conflict of Interest. The Municipal Conflict of Interest Act defines a conflict of interest as a "pecuniary" conflict, However, an apparent conflict of interest is not specifically defined and does not necessarily involve pecuniary interest. This may make it difficult for councillors to determine if their conduct is in violation of an apparent conflict of interest under the Code of Conduct.

    Over time councillors develop relationships and friendships with not only people they do business with but their constituents as well, Councillors are entitled to form these friendships and business relationships, However, it does raise the question in some situations where these relationships may put a councillor in an apparent conflict of interest.

    Some situations may arise where matters are brought before Council by friends or close acquaintances of individual councillors. How should individual councillors conduct themselves in these matters? Should they recuse themselves? There is not always an easy answer to this.

    Just because a councillor knows an individual and has a relationship with that individual does not automatically mean they cannot act on matters brought before Council by that individual, From my experience I have found that if councillors are up front and advise Council of their relationship and assure Council that they are able to act objectively in the best interest of the City of Windsor, Council may make a decision whether councillors need to recuse themselves.

    Councillors may also take advantage of the advice of the Integrity Commissioner to
    determine if they are in an apparent conflict of interest."

With respect, I do not agree that it is Council's role to decide if a Councillor needs to recuse him/herself or a Councillor saying he/she can act "objectively" is conclusive. But except for that, Mr. Basse has raised the problem that arises in this daycare situation. In particular read this part again with respect to "apparent:"

  • "This is an area of importance and councillors must be vigilant that their relationships with people are not seen as an apparent conflict of interest. The Municipal Conflict of Interest Act defines a conflict of interest as a "pecuniary" conflict, However, an apparent conflict of interest is not specifically defined and does not necessarily involve pecuniary interest. This may make it difficult for councillors to determine if their conduct is in violation of an apparent conflict of interest under the Code of Conduct."

The City's Code of Conduct is extremely broad. As an example:

  • "30. Elected officials and staff should take all necessary steps to avoid preferential treatment or the appearance of preferential treatment for friends or family.
  • 33. Staff should refrain from any involvement in analysis or decision making on an issue in which they have a real or apparent conflict of interest. Conflicts or apparent conflicts should be disclosed to or discussed with the staff member’s supervisor."

Who knows how far it reaches. That is precisely why I called for an investigation into this matter. We need to know what the boundaries are. When does one overstep the line and when is it not crossed.

We need to understand what the rules are before we keep having these types of matters raised time and time again.

Ms Warsh's obviously has a strong interest in having this matter resolved:

  • "Depending on “how this plays out,” Warsh said she’ll be “seeking advice on defamation of character — this involves my family and my reputation...

    Warsh, in a phone interview from Florida where she was on vacation, said she will “do what I need to do” to assure citizens that one of Windsor’s top bureaucrats “would never violate the code of conduct.”

On the other hand, there is a public interest as well that needs to be addressed. For the children and their parents obviously. And the CUPE workers who will be displaced also have a strong interest. But Windsorites as well need to know the rules and whether they are being obeyed.

The Eh-channel interview of Jean Fox, the transcript of which is set out in Chris Schurr's BLOG should be looked at.

What should Ms Fox do after hearing those allegations? Nothing? I hardly think so. She would not be doing her job as the President of the CUPE local whose members might lose their jobs. She said what she did:

  • "This information has been sent on to our legal counsel and at this time it is being reviewed and investigated."

It is most disappointing to me that the Mayor would say:

  • "He called the allegation against Warsh “ludicrous” and blamed CUPE of “trying to throw as much mud as possible when there’s nothing there,” in an effort to overturn council’s decision."

He is now politicizing the matter by accusing CUPE of mudslinging, not dealing with concerns over an issue that he helped develop by his comment in the Jones file.

We need to clear the air. And it must be done now. Not only in the interest of Ms. Warsh and her family and for the parents and children and the impacted employees but for the public as well.

Ms Warsh has said that "she will "do what I need to do." Obviously a lawsuit is one way. But there is another.

In my opinion a simple and quick way to resolve the matter is to get the Commish involved or perhaps a retired Judge. We do have an Integrity Commissioner whose job ends June 1. He is still in office. Under the role of the Integrity Commissioner in the City's webpage it states:
  • "Section 223.3 of the revised Municipal Act, supra, enables a municipality to appoint an “Integrity Commissioner” to address the application of the Code of Conduct for elected officials and/or members of local boards. In addition, the legislation provides that the Integrity Commissioner can be delegated any or all of the policy matters surrounding the enforcement of Codes of Conduct for elected officials and/or members of local boards.

    Further, pursuant to section 223.4, an Integrity Commissioner has the power to deal with requests to investigate suspected contraventions of the Code of Conduct."

While technically, his mandate only extends to Council members, there is no reason why Council cannot assign to him, or to someone else if he chooses not to be involved, the task to determine whether there is a violation of the Code of Conduct by a Staff member. The Code of Conduct in Schedule "C" suggests that this be part of his job.

A stated case could be prepared that sets out the facts and asks for an opinion based on specific questions that should be answered. I could help set out the questions too if anyone was interested.

In my view, such action and the opinion given would provide significant guidance to this area of Municipal governance. It should help eliminate the problem in future. Depending on what was said would determine what happens next in daycare.

As for the quote that is part of the Subject-line, it comes from Lord Hewart in the English case Rex v Sussex Justices; Ex parte McCarthy. Below is part of the decision to help explain what the quote means. How it applies in the daycare case with the City's Code of Conduct is something that you dear reader should decide for yourself as a “fair minded observer”, acting “reasonably."

Perhaps Mr. Schmidt before he continues to rail against Bloggers might want to consider it too. The matter is much more difficult than he makes it out to be.

This comes from WikiPedia:

  • "In 1923 McCarthy, a motorcyclist, was involved in a road accident which resulted in his prosecution before a Magistrates Court for dangerous driving. Unknown to the Defendant and his Solicitors, the Clerk to the Justices was a member of the firm of Solicitors acting in a civil claim against the Defendant arising out of the accident that had given rise to the prosecution. The Clerk retired with the Justices, who returned to convict the Defendant.

    On learning of the Clerk's provenance, the Defendant applied to have the conviction quashed. The Justices swore affidavits stating that they had reached their decision to convict the Defendant without consulting their Clerk.

    In a landmark and far-reaching judgement, Lord Hewart CJ said:

    “It is said, and, no doubt, truly, that when that gentleman retired in the usual way with the justices, taking with him the notes of the evidence in case the justices might desire to consult him, the justices came to a conclusion without consulting him, and that he scrupulously abstained from referring to the case in any way. But while that is so, a long line of cases shows that it is not merely of some importance but is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done.

    The question therefore is not whether in this case the deputy clerk made any observation or offered any criticism which he might not properly have made or offered; the question is whether he was so related to the case in its civil aspect as to be unfit to act as clerk to the justices in the criminal matter. The answer to that question depends not upon what actually was done but upon what might appear to be done.

    Nothing is to be done which creates even a suspicion that there has been an improper interference with the course of justice. Speaking for myself, I accept the statements contained in the justices' affidavit, but they show very clearly that the deputy clerk was connected with the case in a capacity which made it right that he should scrupulously abstain from referring to the matter in any way, although he retired with the justices; in other words, his one position was such that he could not, if he had been required to do so, discharge the duties which his other position involved. His twofold position was a manifest contradiction."

One final note and I am sorry to bore you with legal cases. Doug makes a point about "non-blood relative" and "salaried employee" as if somehow that distinguishes the case. Perhaps he is right and it does. The Code of Conduct above talks about "family" and real or apparent conflicts without limiting it to families.

Take a look at what the English House of Lords said in a case where, after a decision was made, an allegation was made against one of the judges who took part. It involved the Chilean dictator who was charged with crimes against humanity:

  • "That being the case, the question is whether in the very unusual circumstances of this case a non-pecuniary interest to achieve a particular result is sufficient to give rise to automatic disqualification and, if so, whether the fact that AICL had such an interest necessarily leads to the conclusion that Lord Hoffmann, as a Director of AICL, was automatically disqualified from sitting on the appeal? My Lords, in my judgment, although the cases have all dealt with automatic disqualification on the grounds of pecuniary interest, there is no good reason in principle for so limiting automatic disqualification. The rationale of the whole rule is that a man cannot be a judge in his own cause. In civil litigation the matters in issue will normally have an economic impact; therefore a judge is automatically disqualified if he stands to make a financial gain as a consequence of his own decision of the case. But if, as in the present case, the matter at issue does not relate to money or economic advantage but is concerned with the promotion of the cause, the rationale disqualifying a judge applies just as much if the judge's decision will lead to the promotion of a cause in which the judge is involved together with one of the parties. Thus in my opinion if Lord Hoffmann had been a member of AI he would have been automatically disqualified because of his non-pecuniary interest in establishing that Senator Pinochet was not entitled to immunity. Indeed, so much I understood to have been conceded by Mr. Duffy.

    Can it make any difference that, instead of being a direct member of AI, Lord Hoffmann is a Director of AICL, that is of a company which is wholly controlled by AI and is carrying on much of its work? Surely not. The substance of the matter is that AI, AIL and AICL are all various parts of an entity or movement working in different fields towards the same goals. If the absolute impartiality of the judiciary is to be maintained, there must be a rule which automatically disqualifies a judge who is involved, whether personally or as a Director of a company, in promoting the same causes in the same organisation as is a party to the suit. There is no room for fine distinctions if Lord Hewart's famous dictum is to be observed: it is "of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done."