city of BRAMPTON integrity commissioner, Donald r. cameron
INVESTIGATION OF COMPLAINT RE: MCKELLAR & ASSOCIATES AND THE DOMINUS GROUP
Notice: Municipal Integrity Commissioners provide investigation reports to their respective municipal council and, in most cases, make recommendations for imposition of penalty or other remedial action to the municipal Council. Therefore, reference should be made to the minutes of each particular municipal council to obtain information about the particular council's consideration of each report. When possible, a link to the relevant municipal council minutes is provided.
Please find below the link to the corresponding council decision.
http://www.brampton.ca/EN/City-Hall/meetings-agendas/City%20Council%202010/20111026ccmn.pdf (see page 29)
TABLE OF CONTENTS
INTRODUCTION.. 3
NATURE OF COMPLAINTS.. 4
(A) McKellar & Associates. 4
(B) Conflict of Interest involving the Mayor voting in favour of the Dominus Group. 5
INVESTIGATION.. 6
(A) Complaint re Professor McKellar 7
(i) Jurisdiction of IC.. 7
(ii) Background Events. 7
(iii) The Purchasing By-Law.. 12
(B) Complaint re Donations from Cortellucci Family. 13
INTRODUCTION
Two complaints were made to the Office of the Integrity Commissioner on August 8, 2011 by Mr. Christopher Bejnar. Mr. Bejnar asked the Integrity Commissioner to investigate the actions of McKellar & Associates and Mayor Susan Fennell in connection with the engagement by the City of Professor McKellar as consultant with respect to the bidding processes to be used for the Southwest Quadrant Renewal Project and subsequently as a Fairness Advisor with respect to the implementation of a Competitive Dialogue Process ("CDP'') adopted as part of the bidding process for such project.
He also complains that Mayor Fennell acted improperly in voting in favour of a staff recommendation to enter into negotiations with the Dominus Group and subsequently to award the contract to that party. Mr. Bejnar asserts that one of the principals of a company which was part of the successful bidder's consortium and members of that person's family made contributions to the Mayor's election campaign in 2010 and accordingly, the Mayor should have refrained from voting on the staff recommendation to enter into negotiations to arrive at agreements with that group and subsequently on the issue of who should be the successful bidder.
I receive my jurisdiction to conduct this com plaint pursuant to s. 223.3(1) of the Municipal Act, 2001, S.O .2001, c.25 (the "Municipal Act", s. 5 of the Code of Conduct for the Members of Council, City of Brampton, dated February 9, 2011(the "Code"), and by Brampton City By-law 41-2011 appointing me the Integrity Commissioner.
Section 223.3(1) of the Municipal Act states:
"223.3 (1) ... [The municipality may] appoint an Integrity Commissioner who reports to council and who is responsible for performing in an independent manner the functions assigned by the municipality with respect to,
(a) the application of the code of conduct for members of council...;
(b) the application of any procedures, rules and policies of the municipality and local boards governing the ethical behavior of members of council ..."
Section 5.0 of the Code states:
"5.0 COMPLIANCE AND INTERPRETATION
Members of Council are accountable to the public, each day, and through the municipal election process. To provide the public with open, transparent and accountable government, Council respects and adheres to legislation, applicable policy and the spirit and intent of this Code of Conduct.
Section 223.3 (1) of the Municipal Act authorizes a municipality to appoint an Integrity Commissioner who report to Council and is responsible for performing, in an independent manner, the application of a Code of Conduct, and the application of any procedure, rule, and policy of the municipality governing the ethical behavior of Members of Council. The Integrity Commissioner serves the public interest and is granted authority under the Act to educate, advise and investigate the conduct of Members of Council."
Brampton City By-law 41-2011 states:
"Role
The role of the Office of the Integrity Commissioner is to help Members of Council ensure that they are performing their functions in accordance with their Code of Conduct and other applicable legislation, procedures, rules or policies governing their ethical behavior. The Office of the Integrity Commissioner will not provide legal advice.
The Office of the Integrity Commissioner will service the public interest and is granted authority under the Municipal Act, 2001 to educate, advise and investigate the conduct of Members of Council."
NATURE OF COMPLAINTS
(A) McKellar & Associates
As indicated above, Mr. Bejnar has filed two complaints with the Integrity Commissioner's office. The first com plaint is against McKellar & Associates and Mayor Susan Fennell. The complaint asserts that a Professor McKellar of McKellar & Associates was engaged by the Mayor and staff of the City to review and make recommendations relative to the bidding process to be used to award a significant contract by the City of Brampton to renovate and expand its City Hall facilities. The project is known as the "Southwest Quadrant Renewal Plan".
As part of his initial engagement, Professor McKellar (a specialist in urban planning) recommended that the City utilize a "competitive dialogue process" (CDP) as opposed to the "blind bid" process normally used by the City of Brampton in its procurement processes. Professor McKellar apparently advocated the adoption of this process which was approved (according to Mr. Bejnar) by the City Manager (Deborah Dubenofsky) and the Mayor. Mr. Bejnar asserts that Professor McKellar was hired as a consultant "without any tender".
Subsequently, Professor McKellar was engaged by the City as a "Fairness Advisor" in order to oversee the application of the CDP with respect to the City Hall renewal / expansion project. Bejnar asserts that it conflict of interest to have Professor McKellar engaged to oversee a process which he had been instrumental in recommending. He further asserts that Council was not consul ted on his retention as a Fairness Advisor nor did it approve or vote on the allocation of funds to pay him in this capacity.
Accordingly, Mr. Bejnar complains that:
Professor McKellar was engaged by the City Manager and the Mayor without going through a tendering process
He was selected to act as the overseer of the project by the Mayor and staff without any reference to Council
Council did not vote on selecting McKellar & Associates or approving the funds made available to pay Professor McKellar as a Fairness Advisor. Mr. Bejnar "believes" that approximately $70,000 was paid to Professor McKellar.
An independent body should have been selected to oversee the CDP recommended by McKellar & Associates.
(B) Conflict of Interest involving the Mayor voting in favour of the Dominus Group
Mr. Bejnar also asserts in his second complaint (which is against the Mayor) that when City staff had completed the competitive dialogue process, they made a recommendation that the City enter into negotiations with one of the bidders (the "Dominus Group") with a view to arriving at mutually acceptable agreements to enable the Dominus Group to carry out the first phase of the expansion renewal project (which is estimated to be valued at $95,000,000).
Mr. Bejnar states that he attended a meeting of Council on March 28, 2011, at which Mr. Maurice Lewis (Commissioner, Financial and Information Services) advised Council that Dominus was part of a larger company known as "Dominus/ Cityzen I Fernbrook". The Commissioner, according to Mr. Bejnar, asked Council if there were any conflicts of interest existing with these entities and no one responded in the affirmative.
Mr. Bejnar then asserts that Fernbrook Homes (one of the entities referenced by Commissioner Lewis as a participant in the bid submitted by the Dominus Group) is controlled by a Cortellucci family, nine members of whom were contributors to the Mayor's 2010 municipal election campaign. Mr. Bejnar also asserts that the Mayor was a strong advocate in favour of the Dominus bid and lobbied various groups to support their proposal prior to the meeting of March 28, 2011.
Mr. Bejnar accordingly complains that the Mayor should not have accepted (nor should the Cortellucci family have donated) money for the election campaign while an active RFP (in. which they were part of a bidding group) was in progress. Once the money was accepted, the Mayor should have abstained from voting on a matter in which a contributor to her campaign had an interest (i.e., the Cortellucci family, one or more of whom allegedly have an interest in Fernbrook Homes, which is stated to be part of the bid of the Dominus Group).
In support of his assertions, Mr. Bejnar provided a listing of the Mayor's declaration of campaign contributions (pursuant to the Municipal Elections Act) which does indicate that some nine members of the Cortellucci family donated $750 each to her campaign. He also submitted copies of newspaper articles suggesting that a Mario Cortellucci has "... ties through his brother to Fernbrook Homes'' (Toronto Star article dated April 6, 2000) and another undated article entitled ''Funding City Politics" suggesting that "Fernbrook Homes" is part of the "Cortellucci group".
That was the evidence of the allegations by Mr. Bejnar that Fernbrook Homes is controlled by the Cortellucci family. There is no specific allegation by Mr. Bejnar that the Cortelluccis who contributed money to the Mayor's election campaign, have any direct involvement with Fernbrook Homes. The list of contributors contained in the Mayor's declaration from 2010 does not include an individual named Mario Cortellucci but it does include a Nicolas Cortellucci.
In any event, based upon the foregoing, Mr. Bejnar asserts that the Mayor had a conflict of interest and should have, on March 28, 2011, abstained from voting on the request to defer the vote to authorize staff to proceed to negotiate final agreements with the staff recommended candidate (the Dominus Group), which motion was defeated 6 to 4. The Mayor should also have recused herself on the vote on the actual decision itself (which carried 7 to 3). Mr. Bejnar also asserts the Mayor should have abstained from voting on the subsequent decision to approve the agreements that emanated from the negotiation process between members of staff and the Dominus Group - which decision was placed before Council on August 10, 2011 and was approved by a 6 to 5 vote with the Mayor voting in favour of approving the agreements.
INVESTIGATION
The IC Office reviewed the materials submitted in support of the complaint and conducted an interview with .Mr. Bejnar to ensure that it had all of the information that Mr. Bejnar wished to place before the Integrity Commissioner (the IC) on this issue. An investigator from the IC Office then interviewed the Mayor with respect to the allegations. The investigator also requested that the Mayor provide him with a chronology of the events (and any applicable Council resolutions) dealing with the allegations relating to the complaints.
Subsequently, the investigator held an in depth meeting with the Commissioner of Finance, Maurice Lewis, who is in charge of the City's procurement processes to gain a full understanding of the operation of the procurement by-laws and policies.
A Google search of Fernbrook Homes does confirm that Fernbrook is a significant development company which has undertaken many residential and condominium projects in Ontario. A corporate search was also undertaken of Fernbrook Homes (Brampton) Limited but this did not disclose that any of the officers or directors of that company was named Cortellucci.
(A) Complaint re Professor McKellar
(i) Jurisdiction of IC
City By-law No. 41-2011 defines the role of the IC as being to assist members of Council in order to ensure that they are performing their functions in accordance with the Code and other legislation, procedures, rules and policies governing their ethical behaviour. The IC Office is specifically prohibited from providing legal advice.
The IC is, under the By-law creating the office, given broad powers to independently investigate issues properly brought before him / her in order to determine whether there has been a contravention of the Code or any other legislation, rules or policies governing the ethical behaviour of members of Council.
The IC is not empowered or authorized to determine whether persons other than members of Council have acted in contravention of their ethical obligations pursuant to the Code or other legislation, rules or policies of the City affecting ethical behaviour. Accordingly, to the extent that Mr. Bejnar's allegations may be directed at members of staff or other third parties such as Professor McKellar, they are beyond the scope of authority of the IC to investigate. Whether or not Professor McKellar was properly or improperly engaged by staff or whether he properly discharged his ethical obligations in the context of his agreements with the City, are matters that are not within the purview of the IC.
The sole issue to be determined therefore is whether the Mayor improperly contravened the Code or some other policy or rule or piece of legislation imposing ethical obligations on her relative to the procurement of the services of McKellar & Associates.
It should be emphasized that there is no assertion that the Mayor in any way personally benefited by pecuniary reward or otherwise from the letting of the original contract to McKellar & Associates and the subsequent retention of Professor McKellar as the Fairness Monitor to oversee the application of the CDP process.
(ii) Background Events
I will attempt to set forth in an abbreviated form the significant events surrounding this complaint as they were reported to my investigator as a result of his inquiries:
(A) 2005-2007
The current City Hall was constructed on a "build to own" basis in the mid- 1980s. In or about 2004-5, a number of business community leaders advocated to expand City Hall in order to meet the needs of the city in the future and help revitalize the downtown core area.
Partly in response to these initiatives, Council, in 2005, directed the staff to issue an "RFEI" (i.e., Request for Expressions of Interest). This was not an RFP as there were no specifications or even a concrete idea of what Council wanted. It was rather an attempt to reach out to the private sector in order to get their input on what the issues and costs might be if Council determined to expand / renovate the City Hall space.
In response to the RFEI, companies submitting expressions of interest tendered a number of different parameters than the ones initially set by Council (which were generic in terms of square footage desired, etc.). Council received advice that if it really wanted to pursue this matter, it would have to develop much clearer parameters and issue a formal RFP. Council accordingly determined to end the process in 2007 with a view to starting it anew if Council should determine to proceed in this direction.
(B) Next Steps
Deborah Dubenofsky was hired as the City Manager in late 2007 and was faced with the task of developing a report on the next steps to be taken to expand / renovate City Hall. Ms. Dubenofsky and staff proceeded to prepare such a report which then came before Council towards the end of December 2008.Once the report was presented to Council, it was tabled in order that meetings and discussions could be held with the various downtown interest/ stakeholder groups.
(C) Council's Direction
The matter came before Council on February 25, 2009. Council then directed staff to take a number of steps with a view to having an RFP issued by the end of October 2009. These steps included:
A Council Workshop - April 27, 2009
A Stakeholder Workshop - May 2009
A financial analysis and strategy be developed
A Council update be provided in June 2009
One of Council's mandates to staff was that it should devise a proposal to harness the creative energy of the private sector for this project. Council did not want to simply issue specifications to cause a building to be constructed – the City was debt-free and it did not want to incur a large amount of debt in order to undertake this project. Council accordingly wanted to look at other options including build to lease to own, etc., where the private sector did the financing and the City's costs were fixed. Ultimately, the City would, as part of such an arrangement, own the building upon the expiration of a negotiated lease term.
(D) McKellar & Associates
In order to come to grips with this considerable task, staff determined to engage Professor McKellar of McKellar & Associates, reputedly a noted urban planner, to give staff advice and guidance on various issues and processes to be adopted to undertake the tasks that Council had set for staff.
As will be seen subsequently in this report, the choice of Professor McKellar was solely that of staff as was the issuance of the agreement to engage him. The Mayor had no involvement in selecting Professor McKellar as a consultant (or subsequently as Fairness Advisor).
Professor McKellar was engaged in or about April 2009 and ultimately advised staff (and Council) on a number of matters to achieve Council's objectives including a suggestion that the appropriate way to approach this task was through a new procurement process known as competitive dialogue. He therefore advanced and recommended this process which was ultimately agreed to by staff.
(E) Staff Report to Council
Council received the report from staff in June 2009 and directed staff to have an RFP plan ready for issuance by no later than October 31, 2009.
(F) Fairness Advisor
In or about August - September 2009, Professor McKellar was designated by staff to act as a "process and Fairness Advisor". Council was advised that Professor McKellar was acting in this role but the Mayor had no part in his selection or appointment to this position. The contractual foundation for engaging Professor McKellar was initiated by staff in accordance with the provisions of the procurement by-law as a single or sole source consultant - which is a process permitted in the procurement by-law.
The relevant sections of the by-law are as follows:
"1.39 "Single Source" means there is more than one source in the open market but only for reasons of function or service one vendor is recommended for consideration of the particular goods and/or services.
1.40 "Sole Source" means there is only one source of supply of the particular goods and/or services.
8.9 DIRECT NEGOTIATED PROCESS
Unless otherwise provided in this Policy, the requisitioning Department Head in consultation with the Dr. Manager of Purchasing may enter into negotiations with one or more vendors for the supply of goods and/or services when any of the following conditions apply:
8.9.6 Goods and/or services are available from a single or sole source, as defined in 1.39 and 1.40."
(G) Status Reports
On September 23, 2009 and October 21, 2009, status reports were made to Council by staff and by Professor McKellar, who spent some time outlining and explaining the CDP process.
(H) RFP Issued
On October 30, 2009, the RFP was issued with a closing date of February 11, 2010. In other words, all bids had to be in by February 11, 2010. Forty-three parties picked up copies of the RFP but only three made formal proposals.
(I) RFP Closed
On February 11, 2010, the RFP closed and an evaluation committee consisting solely of high-level staff commenced its work of evaluating the submissions by the three bidders.
J) Evaluation Committee
On March 19, 2010, three successful candidates were named and the Evaluation Committee commenced the competitive dialogue process. While it was initially determined that this process would only take a few months, it stretched on for over a year. The CDP involves ongoing dialogue between staff and the bidders and has strict restrictions with respect to confidentiality and no communication with members of Council while the RFP process is underway. Confidentiality agreements must be signed by the bidders to proceed into the CDP stage of the process.
The submission of one of the bidders (the Inzola Group Limited) was subsequently disqualified by the City from further consideration in the RFP process. This left two bidders in the process - Morguard and the Dominus Group.
The Evaluation Committee continued to dialogue with each of these bidders with the objective of coming up with a "preferred candidate" to recommend to Council.
Each bidder was ultimately asked for its "final offer''.
(K) Dominus Final Offer
On December 9, 2010, the final offer was submitted by the Dominus Group. As part of its presentation, the Dominus Group identified to staff that Fernbrook was a strategic partner of their consortium. This was done in the covering letter attaching Dominus' final offer to the Commissioner of Finance.
(L) Staff Selects Dominus
On March 28, 2010, staff brought forward its preferred / recommended candidate, the Dominus Group, to Council. At the Council meeting held on that date, as part of his presentation, the Commissioner of Finance, Mr. Lewis, advised Council that Fernbrook was part of the Dominus/ Cityzen / Fernbrook group which was the recommended bidder. There was a lengthy meeting in which various deputants were able to make presentations to Council. Mr. Chris Bejnar made a lengthy presentation in which he was very critical of the process and the choice of the Dominus Croup. He said (among other things) that the principals of the bidding companies may have donated funds to members of Council and the Mayor while there was an active RFP in process. Assertions in this respect at this meeting were general in terms.
A motion was brought by a Councillor to defer the vote on approving the preferred candidate recommended by staff, which motion was defeated by a vote of six to four.
A motion to authorize staff to embark upon negotiations for final agreements with the Dominus Group was then passed by a vote of seven to three. Under the CDP, Council could only vote to accept or reject staff's recommended candidate. Council could not substitute another candidate at this point.
It is important to note that Council votes by standing when called by the Clerk. In that way, no one can cast a 'deciding vote' on a motion as everyone votes simultaneously.
(M) Staff Negotiates Agreement
Between March 28, 201land August 10, 2011, staff negotiated a final agreement with the Dominus Group.
(N) Complaint
On August 8, 2011, Mr. Bejnar filed his com plaint with the re Office.
(0) August 10, 2011 Council Meeting
The matter came before Council on August 10, 2011. At that Council meeting, a motion once again was brought to defer the approval of the preferred candidate (the Dominus Group). That motion was defeated six to five with the Mayor voting against it.
The motion to accept the Dominus Group and ratify the agreements negotiated by staff was then brought forward to Council, and it carried six to five with the Mayor voting for it. Again, no one cast a deciding vote as all those voting in favour voted simultaneously.
During the course of this Council meeting, Mr. Bejnar attended and made assertions that the Mayor had received campaign contributions from the principals of the Fernbrook group.
At the end of the day, the City is now contracted with the Dominus Group to build the first phase of the City Hall expansion (worth about $95,000,000). It is anticipated that Dominus will break ground in the near future.
In the meantime, the Inzola Group Limited on July 4, 2011, commenced a legal action against the City, fundamentally asserting that it was improperly disqualified from the bidding process and, had this not occurred, it would have been successful.
(iii) The Purchasing By-Law
The City of Brampton does have a purchasing by-law which sets out various policies and processes to be utilized in the procurement of goods and services required by the City. The obligations under this by-law are, however, predominantly imposed upon members of staff, not members of Council.
Under the purchasing by-law of the City, there is no specific obligation imposed on the Mayor or any other member of Council, although there are some general proscriptions (section 16, for example) imposed on all officers and employees of the City of Brampton.
The Mayor states unequivocally that she had no role in retaining McKellar & Associates as consultants to the City on the project, or Professor McKellar as a Fairness Advisor to oversee the CDP process. The Commissioner of Finance who has overall responsibility for administering the procurement by-law confirms the Mayor's statement in this respect
The idea of retaining Professor McKellar to assist in coming to grips with what was a new and dynamic process was accordingly solely a decision of staff, not the Mayor. In fact, as the Mayor indicated, neither she nor any other member of Council were involved in procurement. The decision to retain Professor McKellar as a consultant and subsequently as Fairness Ad visor to monitor the CDP process was made by staff without any input or involvement of the Mayor or other members of Council. This is in accordance with one of the prime recommendations of the Bellamy inquiry.
The initial approval to negotiate with and engage McKellar & Associates (without tender) was made in March 2009 at an hourly rate and an upside limit of $65,000. That contract was subsequently amended and extended to a total limit of $115,000 in October 2010. Sole or single source contracts for consultants are permitted under the procurement by-law if the contractor is the only source practically available to provide the service and the requisite sign-offs from different levels of staff (which vary depending on the size of the contract) are obtained. The Commissioner of Finance has stated that all the appropriate procedures and sign-offs (by staff) were obtained for the McKellar engagements.
Accordingly, the evidence available as a result of this investigation indicates that the Mayor has not acted in contravention of the Code or of the purchasing by-law 193- 2007 and accordingly the complaint in this respect is not substantiated. As indicated above, any issue as to whether staff acted in accordance with the purchasing by-law and / or policies of the City, is not within the scope of authority of the IC Office.
The complaint is therefore unsubstantiated against the Mayor who had no involvement in engaging McKellar & Associates (or Professor McKellar) as a consultant or as the Fairness Advisor.
(B) Complaint re Donations from Cortellucci Family
The evidence submitted by Mr. Bejnar indicated that during the civic election of 2010, the Mayor received contributions from nine members of the Cortellucci family in the amount of $750 each. The names of the individuals who made such contributions (as disclosed) in the financial statement filed by the Mayor pursuant to the provisions of the Municipal Elections Act, are as follows:
Rosanna Cortellucci
Nicholas Cortellucci
Sabrina Cortellucci
Claudia Cortellucci
Nicola Cortellucci
Fabrizio Cortellucci
Pietro Cortellucci
Ginesia Cortellucci
Stefano CorteIIucci
There is, accordingly, no question but that these individuals did make contributions in the amounts specified, to the Mayor's election campaign in 2010.
Mr. Bejnar, however, also indicated that these contributors controlled "Fernbrook Homes" which was apparently part of the Dominus consortium, which ended up being the successful bidder on the City Hall renovation/expansion project.
The IC Office caused a corporate search to be performed of Fernbrook Homes (Brampton) Ltd., a company that was apparently incorporated in 1986. None of the directors or officers listed on the Corporation Profile Report obtained from the Ministry of Government Services carried the name Cortellucci nor do any of the addresses indicated beside the names of such individuals coincide with the addresses of any of the contributors to the Mayor's campaign.
In support of his assertion that there is a linkage between the Cortellucci family and Fernbrook Homes, Mr. Bejnar submitted a newspaper article indicating that a Mario Cortellucci had ties through his brother to Fernbrook Homes, as well as an excerpt from an article entitled, "Funding City Politics" by Robert MacDermid, indicating that Fernbrook Homes was part of the Cortellucci group.
The Mayor herself, however, also believes that as a matter of general information and knowledge, "Nick Cortellucci" controls Fernbrook Homes but she has no direct knowledge of this.
Based upon the foregoing, the IC Office does not have any direct evidence to establish that any of the contributors controlled Fernbrook Homes, but it does seem to be a generally held belief that Nick Cortellucci (one of the contributors to the Mayor's campaign) is a principal of that company and I will assume that to be the case for the purposes of this report.
According to Mr. Bejnar, the suggestion that Fernbrook Homes is part of the Dominus Group for purposes of the project apparently came to the fore when Commissioner Lewis mentioned in his presentation of March 28, 2011(advising Council that Dominus was the preferred / recommended choice of the Evaluation Committee) that Fernbrook was part of the strategic partnership with Dominus to undertake this project. While Mr. Bejnar asserted that the Commissioner then asked if that created any conflict of interest for any member of Council, the Commissioner denies the allegation of Mr. Bejnar, saying that any such statement would have to come from the City Clerk or the Mayor, not from him.
As stated above, it appears that Fernbrook is associated with the Dominus Group for this project. It is also clear that nine of the Cortelluccis (including Nick Cortellucci) donated money to the Mayor's campaign in 2010. What is not clear is the relationship between the Cortelluccis and Fernbrook although it appears to be believed by some (including the Mayor) that there is a relationship at least between Nicolas Cortellucci and Fernbrook Homes.
The IC Office has reviewed the available statutory declaration forms candidates have to file under the Municipal Elections Act identifying the source of their contributions. While some of the Brampton Councillors may have not yet filed completed forms, the ones reviewed indicated that Nicolas Cortellucci (or his company, which is reported in the various declarations filed by several Councillors to be Four Valleys Excavating & Grading Ltd.) made contributions to 5 candidates (including the Mayor) and two other Cortelluccis contributed to a sixth. John Cutrazolla (who reputedly owns Inzola - the disqualified candidate) or companies of which he is identified as an officer gave to four Councillors. One Councillor received money from both. There are many donors listed who contributed to a number of candidates and some to most of them.
It is accordingly not unusual for contractors or developers to donate to the campaigns of many municipal politicians. The Municipal Elections Act compels full disclosure of these donations as a matter of public record so there is no hiding them.
The critical issue is whether, when an issue arises before Council involving these contributors, the Councillor is required to recuse himself / herself because of the perception of a conflict of interest. I do not believe that a person seeking election to municipal government is subject to such a requirement.
If a person who received a contribution from someone had to recuse him or herself from voting on an issue where the donor had an interest, then someone who knew a Councillor was opposed to him or her on a particular issue could just make a donation to that Councillor's campaign and the Councillor would be prevented from voting on the issue. Even worse, if a person knew that only one Councillor would vote in favour of the donor's issue, he or she could donate to all of the candidates except the one who would vote in favour of the donor's position, thus disqualifying all of the other councillors from voting. It would not make sense to have a system where this could occur.
Further, in this case, if the complainant's assertions were accepted, a full six out of eleven Councillors would have had to recuse themselves from voting on whether a bidder identified by a staff Evaluation Committee (after almost a year of effort) as the preferred and recommended contractor, should be accepted.
I therefore do not believe that it is improper for a Councillor to participate in a vote where the subject matter of the vote is someone who had contributed to the Councillor's election campaign. Also, and most importantly, I do not see how the fact that a Councillor cast a vote .in favour of a bidder (and subsequently the agreements that had been negotiated by staff with such bidder) would result in a contravention of the Code, even if the bidder had made a donation to the Councillor's election campaign.
I should note that one could argue that the actions of a councillor voting in favour of a resolution that impacts a person who donated to the Councillor's election campaign could perhaps, in certain circumstances, give rise to a violation of the provisions of the Municipal Conflict of Interest Act.
Under the provisions of that statute, however, the issue of whether a member of Council has a direct or indirect pecuniary interest in any matter in which Council is concerned is to be determined by a judge of the Superior Court of Justice after an application is made for a determination of the question by an elector. There are substantial consequences set forth in the legislation in the event of a finding that a contravention has occurred
In the face of a statutorily prescribed process, this is not a matter that can or should be determined by the IC.
I therefore conclude that the allegations of Mr. Bejnar have not, on the evidence reviewed during this process, been shown to contravene the Code.
Signed: Date: October 20, 2011
Original Signed By
The Honourable Donald R. Cameron, Q.C.
Integrity Commissioner