Declaring a Pecuniary Interest

Think it is easy being an Integrity Commish. All open and shut stuff. Hardly. Read on and let's see what you would say if asked to give a ruling.

The declaration of pecuniary interest is what is done at the beginning of a Council meeting so that a Member of Council will not be in violation of the Municipal Conflict of Interest Act.

I am going to pretend to teach you, dear reader, a course on "conflicts" for Integrity Commishes and give an exam on the subject by showing videos of Windsor's Mayor and 2 Councillors making their declarations.

You will of course be tested on what they did to see if they complied with the Act and be graded on your results accordingly. Let's see if YOU would make a worthy Commish!

Here are the relevant statutory legal and other obligations to keep in mind:

Section 1

"interest in common with electors generally” means a pecuniary interest in common with the electors within the area of jurisdiction and, where the matter under consideration affects only part of the area of jurisdiction, means a pecuniary interest in common with the electors within that part"

Section 4

4. Section 5 does not apply to a pecuniary interest in any matter that a member may have,

(j) by reason of the member having a pecuniary interest which is an interest in common with electors generally

Section 5

5. (1) Where a member, either on his or her own behalf or while acting for, by, with or through another, has any pecuniary interest, direct or indirect, in any matter and is present at a meeting of the council or local board at which the matter is the subject of consideration, the member,

(a) shall, prior to any consideration of the matter at the meeting, disclose the interest and the general nature thereof;

(b) shall not take part in the discussion of, or vote on any question in respect of the matter; and

(c) shall not attempt in any way whether before, during or after the meeting to influence the voting on any such question

Here are some relevant provisions of the Council Code of Conduct that deal with Conflicts that incorporate the Bellamy Inquiry Recommendations – Ethics:

SCHEDULE “C”

20. Rules about conflicts of interest and apparent conflicts of interest should form part of the City’s codes of conduct.

21. Councillors and staff should be made aware that it is unacceptable for them to act on a matter in which they have either a real or an apparent conflict of interest.

22. Councillors and staff should take steps to avoid as best they can both real and apparent conflicts of interest. For assistance, they should seek the guidance of the office of the integrity commissioner.

A big hint: note especially that "apparent" conflicts are just as much a No-No as are "real" ones. Of course, that is one of the issues for the Commish to decide that I raised in my Complaint to Mr. Basse

COUNCILLOR POSTMA

Listen to what she said

What did she do that some might not think of until it was raised in the Jones matter? It should be easy to answer now.

Notice that she confirmed that "apparent" conflicts are a problem in Windsor so there can be no argument about it. The Mayor confirmed it as well since he accepted her declaration. Did you get that for one mark?

Howver, take a look at the Act to see what she forgot to mention.

Did you catch as well that the Mayor made an error too? He forgot to remind the Councillor about something that he should have as Chair of the meeting.

Yup, if you said it revolved around forgetting to mention "the general nature thereof" give yourself a passing grade. Why did she recuse herself? What was the reason? Enquiring minds want to know.

If you recall, even Edgar (aka Eddie), and he IS a lawyer, seemed to have made that mistake on a Tunnel meeting and again at this session so we ought not to get too angry at the Councillor. It took several notes from me to find out finally that his general nature thereof had to do with Mr. Taqtaq.

MAYOR EDGAR FRANCIS

Listen very carefully since he speaks quickly and tell me if there is an issue:

The Mayor's daughter attends private daycare. The Mayor made the bald assertion that he had received legal advice that he had no pecuniary interest and so he could participate in the debate. Did he tell us what was the basis of that advice? If he did not, why not? Was he required to do so?

Obviously, if Municipal daycare ends, then private daycare benefits. Private owners can make more money, get more customers and increase profits. It could also be, because of better economies of scale, costs might even be reduced.

425 new students placed in private daycare could be a life saver.

Remember what I Blogged before:

• "Daycare operators worried
  
  Owners of daycares and Montessori schools are concerned that the province's new full-day kindergarten option will cause a significant drop in business at private-sector child care centres...
  
  That could be bad news for people like Julie Roy, who owns three Montessori schools in the area.
  
  "People are just seeing free daycare," she said, of parents who may opt to save on fees at her schools by enrolling children in kindergarten.
  
  "Competing with free is impossible..."
  
  Roy fears if there's a mass exodus of older children from her schools to kindergarten, her business simply won't be viable."

One mark if you can explain if that is a pecuniary interest or not.

Let us assume that the Mayor may well be right that there is no "real" pecuniary interest involved but what about "apparent?"

For a bonus mark, consider this pecuniary declaration by the Mayor in another case. Explain the distinction if you can between merely being a homeowner in the area thereby declaring an interest and having a family member in daycare where there could be an impact and not declaring an interest:

For his second reason the Mayor's comment was that he need not be concerned because if there was an interest deemed, the interest would be the interest which would be the same as with all citizens affected by the Motion generally.

Is that what the Act says where it talks about "by reason of the member having a pecuniary interest which is an interest in common with electors generally?"

Remember also Section 1 which talks about an area: "a pecuniary interest in common with the electors within the area of jurisdiction."

For another mark, give your reasons why the Mayor is right or wrong in what he said. Hint: can the Act be interpreted so narrowly as to mean only people impacted by a Council Motion. Does that make sense because doesn't it mean that he has a pecuniary interest since he is limiting the "area" to only those people who are concerned with the subject-matter.

COUNCILLOR BRISTER

Now this "pecuniary interest" is a real toughie. Only the top students will be able to figure this one out. Do not worry though, I will bring in expert help to give you some clues. Listen hard to what the Councillor says since the audio is not the best:

Congrats to the Councillor's family member for getting a job recently at PCR.

Hmmm, wait a minute...That Company name sounds familiar. Didn't that Company build the East End arena? Wasn't Councillor Brister Chair of the WFCU Centre Steering Committee that oversaw the project? Their function was:

• The Steering Committee is responsible for:
  
  --Review progress reports on construction activity & monitor performance
  --Review monthly financial report of budget vs. actual expenditures
  --Recommend changes to City Council as needed in respect of total budget
  --Address any issue that has major implications to the success of project
  --Recommend to City Council the financing strategy for the project
  --Recommend to City Council the overall operating strategy - post completion
  --Ensure all City by-laws (including the Purchasing By-Law are adhered to
  --Approve and recommend to City Council a comprehensive public relations / communications plan.

It looks like the final meeting of that Committee took place on September 14, 2009. Therefore the hiring of the family member took place some time within 4 1/2 months of the completion of the project presumably since it was recent although the Councillor did not reveal the exact date.

Oh Dave, what a can of worms you have just opened up. Doesn't he see the obvious political problem especially if he wants to run for Mayor if Edgar does not run? Dave of all people, the former Chair of STOPDRTOP, the guy who should be so conscious of this type of issue. Two marks if you can identify the concern!

Do you see the issue? Is it real or apparent? Or is there one at all?

Stumped? You don't see it. OK, bring in the expert help, Gord Henderson.

Here is what he wrote about a similar matter, granted not identical, involving former Mayor Mike Hurst who took a job with DRTP within 6 weeks after leaving Office. In this case, it is much tougher and not as direct. It involves a family member taking a job with a Company over which the Councillor had oversight in a controversial multi-million dollar transaction within 4 1/2 months of project end.

Can Gord's remarks be used as a precedent? How do these comments apply to this situation if they apply at all:

• "Mike Hurst is an honourable man. No question about that. But nobody would have understood better than he the city's game plan in resisting the DRTP and the nine-point plan to turn the E.C. Row and an extended Lauzon Parkway into a continental truck route...
  
  It boggles the mind that the individual who ignited resistance to the DRTP is now a DRTP super salesman attempting to persuade Windsorites to accept what many of us view as the unacceptable."
  
  
• "Instead, if he takes the DRTP job, it will raise troubling questions about the appropriateness of an individual who's only weeks removed from the city's most powerful position joining a corporate player in the most controversial high-stakes duel in Windsor's history."
  
  


• "I'm happy Hurst has found work and will be able to put bread on the table at his Southwood Lakes hacienda. But jeesh. I just wish it was a job that didn't put him back on the razor's edge of a fight that will further polarize this community and arouse venomous passions. People close to him tell me he could have had rewarding positions with either the CAW or the University of Windsor that would have kept him out of the limelight."
  
  


• "Hey, I'm as interested as the next person in seeing that kids don't go hungry. But I suspect many of the same folks who have no qualms about Hurst's employment choice would go ballistic if they read headlines about a cabinet minister leaving government to join a corporation that was lobbying to overcome government resistance to its plans."
  
  


• "Councillor Caroline Postma gave notice this week that she's drafting a "post-employment code of conduct" that will feature a one-year cooling off period before city politicians or senior officials can take a job with a company that has current contracts with the city or is a major proponent in any infrastructure project over which the city is perceived as having control.
  
  "It's way too late to deal with him (Hurst) and that's a shame," said Postma. "I was amazed at what's lacking in terms of accountability for city politicians."
  
  
• "A gaping hole in provincial legislation allowed Mike Hurst to go from ruling Windsor with an iron fist to being the hired gun of a powerful corporation pushing a mega-bucks deal that the city strenuously opposes.
  
  Now the city, according to Mayor Eddie Francis, is moving to fill that gap by introducing city legislation requiring departing city representatives to observe a "cooling off" period before taking their knowledge and experience to corporations that have direct dealings with the city."

So do you see what the issue is now and how difficult it is to make a decision?

Ok, add up your marks to see what your total score is. If you got a good report card, then you may have a new career at a good rate of pay open up in front of you:

• "Basse, whose contract ended Dec. 31, will continue till June.
  
  For the 16 months he was on the job, he charged the city $27,000, plus his $16,000 retainer...
  
  In the meantime, the city will accept proposals for an integrity commissioner beyond June."