Judicial Dismissal of Toronto's Mayor
Between the American Thanksgiving holiday and throwing out my back so that I
couldn't sit at my computer, I missed one of the most fascinating
stories of the year: a <a href="http://www.theglobeandmail.com/news/toronto/read-the-court-ruling-remov…; target="”_blank”">judicial
dismissal of Toronto's mayor for a conflict of interest violation</a>.
The conflict situation was minor, but the way the mayor handled it
and the way Toronto's ethics laws relating to council members, including<a href="http://www.e-laws.gov.on.ca/html/statutes/english/elaws_statutes_90m50_…; target="”_blank”">Ontario's
Municipal Conflict of Interest Act</a>, are set up led to an extreme
penalty and an ugly situation.<br>
<br>
I dealt with the underlying conflict situation in <a href="http://www.cityethics.org/content/miscellany-27" target="”_blank”">a blog post
three months ago</a>. But my focus there was on the idea of a
high-level official soliciting funds for a private charity (to buy
football equipment for presumably needy children). Here I would like
to focus on the ethics enforcement process that led to the mayor's
dismissal by a judge.<br>
<br>
According to <a href="http://www.theglobeandmail.com/news/toronto/the-man-who-brought-down-to…; target="”_blank”">a
recent article in the <i>Globe and Mail</i></a>, a man peripherally
involved in local politics filed a complaint alleging that the mayor
had improperly used his position to raise $3,150 in donations to his
private charity. Hardly a matter of serious official corruption, but
certainly an abuse of office.<br>
<br>
<b>The Integrity Commissioner</b><br>
<a href="http://www.toronto.ca/integrity/" target="”_blank”">Toronto's integrity
commissioner</a> investigated the allegations and, in <a href="http://www.toronto.ca/integrity/integrity-reports.htm#2012" target="”_blank”">a
series of reports</a>, concluded that the mayor had improperly
used his
city council status to solicit funds for his football foundation. If
the commissioner could have sat down with the mayor and worked out a
reasonable settlement, the whole matter might have ended there. The
mayor would have admitted he had acted wrongfully and paid back the
donations. Or he would have fought the matter before an ethics
commission or hearing officer, would have been found to have acted
wrongfully, and been penalized. The ethics enforcement process would
have worked, there would have been little in the way of scandal, and
high-level officials would have learned that they could get into
trouble if they used their position for private, even if charitable
purposes.<br>
<br>
<b>The Role of the Courts</b><br>
But the integrity commissioner's involvement isn't all there is to Toronto's ethics law. In fact, the commissioner
was applying <a href="http://www.toronto.ca/integrity/integrity-protocols-policies.htm" target="”_blank”">a
council code of conduct</a>. Complaints under the Municipal
Conflict of Interest Act are filed with a judge, and the act's
penalty provision binds the judge's hands very tightly:<blockquote>
...where the judge determines that a member or a former member while
he or she was a member has contravened subsection 5 (1), (2) or (3),
the judge,<br>
(a) shall, in the case of a member, declare the
seat of the member vacant . . .</blockquote>
Yes, the judge can also force the member to make
restitution, but this is not sufficient. The member must go, even
if the member is the mayor and even if the violation was
relatively minor.<br>
<br>
<b>The Role of the Council</b><br>
But the process is even worse than this. The integrity
commissioner reports to the council, on which the mayor sits. The
council debated the integrity
commissioner's report. When the matter came before the council,
the council speaker warned the mayor that he might be in a
conflict situation, but the mayor spoke and voted on the matter
anyway.
The council "relieved him of any obligation to return the funds,"
according to <a href="http://www.thestar.com/news/gta/cityhallpolitics/article/1250539--mayor…; target="”_blank”">an article in the Toronto <i>Star</i> </a>and
<a href="http://www.theglobeandmail.com/news/toronto/a-primer-on-court-case-that…; target="”_blank”">another in the <i>Globe and Mail</i></a> back
in September.<br>
<br>
By getting involved, the council ignored the
integrity commissioner, politicized the conflict situation,
undermined the public's trust in it, interfered with the ethics
enforcement process, and allowed the mayor to create yet another
conflict situation, one that a court could not possibly ignore. One more example of how self-regulation is completely inappropriate to government ethics.<br>
<br>
<b>Withdrawal from Participation Rule That Goes Too Far</b><br>
And the court did not ignore the mayor's vote. The Conflict of Interest Act is very
explicit:<blockquote>
Where a member ... 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 ...<br>
<br>
(b) shall not take part in the discussion of, or
vote on any question in respect of the matter; and<br>
(c) shall not attempt in any way whether before,
during or after the meeting to influence the voting on any such
question. R.S.O. 1990, c. M.50, s. 5 (1).</blockquote>
It was clear that if the mayor said a word, he
would be in violation of this law.
But the law was inappropriate to such a situation. An official
accused of an ethics violation should be allowed to speak in his
defense. Yes, he should not sit or deliberate with council
members, he should not vote, even on related motions, nor should
he try to influence his colleagues in any way other than public
speech. But no law should prevent him from leaving the council table or podium and
speaking on his own behalf. Withdrawal from participation involves
withdrawal as an official, not as a citizen (although there are many situations where it would seriously inappropriate for an official to speak even as a citizen, for example, where it is not only his personal interest that is at stake).<br>
<br>
By discussing the mayor's charity-related
conflict situation, the council set the mayor up for another
ethics violation. But his decision not only to speak on his
behalf, but to vote, shows a serious lack of judgment.<br>
<br>
<b>Arrogance, Entitlement, and Ethical Misconduct</b><br>
<a href="http://www.theglobeandmail.com/commentary/rob-ford-too-stubborn-to-be-m…; target="”_blank”">A
<i>Globe and Mail</i> column last week by Margaret Wente</a> shows the
sad origins of the mayor's lack of judgment, which not only helped
lead to his dismissal but appears to be behind his fight to hold
on to his position via appeal. In her column entitled "Too
Stubborn to Be Mayor," Wente argues that the mayor "refuses to be
the mayor of all the people – or even most of the people. If
you’re not on his side, you’re the enemy. ... Mr. Ford is a
divider, not a uniter. ... He is impervious to good advice and
oblivious to the line between his public and his private duties.
Only a blockhead would commandeer a city bus (in service at the
time) to take his football players home from a game.<br>
<br>
The judge "condemned the mayor’s 'stubborn sense
of entitlement." According to Wente, the mayor's "serial abuses of power
were trivial, but they were also relentless and profoundly stupid."<br>
<br>
Too often we think of corruption as involving
the taking of a big bribe or kickback, selling out to developers,
or helping one's family members to contracts and grants. But
ethical misconduct often consists of numerous small abuses of
power, how an official deals with public property and with
subordinates, how open an official is to responsible advice, and
how entitled he feels. Ethical misconduct also consists of
everyone around such an official supporting this sense of personal entitlement and the unacceptable behavior it leads to.<br>
<br>
From all appearances, Toronto's mayor, unlike <a href="http://www.cityethics.org/content/high-level-officials-obligation-seek-…; target="”_blank”">Montreal's</a>,
did not oversee a corrupt administration. But he conducted himself
as if he personally ran the city rather than administered it as a fidicuary for the community.<br>
<br>
<b>What Should Change</b><br>
The council should get out of the ethics enforcement process; an
independent, non-judicial enforcement method should be created;
and officials should start speaking out whenever one of their
colleagues misuses his office, even if it is ostensibly for others
(often, as here, those others are either people to whom an
official owes favors or with whom he has a special, personal relationship
such as, here, football coach). Toronto's ethics program should be
reviewed and reformed top to bottom.<br>
<br>
Robert Wechsler<br>
Director of Research-Retired, City Ethics<br>
<br>
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