Inquiry Judge Says That Ethical Obligations Go Beyond Ethics Law Provisions
There's an interesting issue at the heart of a judicial inquiry into
possible misconduct by the mayor of Mississauga, Ontario. The council
sought the inquiry to “investigate any supposed breach of trust or
other misconduct of a Member of Council, an employee of the
municipality or person having a contract with the municipality” and to
inquire into “any matter connected with the good government of the
municipality or the conduct of any part of its public business." In
short, it is an open-ended inquiry into multiple matters relating to
two
deals in which the mayor was involved.<br>
<br>
According to <a href="http://www.thestar.com/news/gta/mississauga/mccallion/article/833568--m…; target="”_blank”">an
article in the Toronto <i>Star</i></a>, the mayor sought to have the judge
narrow the inquiry to handling conflicts of interest as described in Ontario's <a href="http://www.e-laws.gov.on.ca/html/statutes/english/elaws_statutes_90m50_…; target="”_blank”">Municipal
Conflict of Interest Act</a>, that is, only participation at a council meeting, not outside of such meetings. The judge rejected this narrowing with a
wonderful speech on local government ethics:
<ul>
Members of city council are entrusted by those who elect them to act in
the public interest. Optics are important. In other words, members of a
municipal council must conduct themselves in such a way as to avoid any
reasonable apprehension that their personal interest could in any way
influence their elected responsibility. Suffice it to say that members
of council (and staff) are not to use their office to promote private
interests, whether their own or those of relatives or friends. They
must be unbiased in the exercise of their duties. That is not only the
common law, but the common-sense standard by which the conduct of
municipal representatives ought to be judged. ... When Mayor McCallion
swore her oath or declaration of office yet again on Dec. 4, 2006, she
agreed inter alia to ‘... truly, faithfully and impartially exercise
this office....' She did not simply say she would abide by the
Municipal Conflict of Interest Act.
</ul>
Council for the mayor took the position that "the mayor’s conduct
must be assessed by the standards of conduct at the time (the
provincial code) and not by rules that did not apply or exist."<br>
<br>
In other words, the classic difference between ethics and law. The
official wants only the strict requirements of ethics law to apply, and
the council and judge act as if they are only minimum requirements.<br>
<br>
It is certainly in the mayor's interest to limit the inquiry to
matters before the council, because part of what the mayor is accused
of is meeting privately with parties to a deal that involved her son's
company and the municipal employees pension plan. Since there is no law
that expressly deals with using your position to help your son get a
deal through, she feels that these meetings should not be considered as
possibly unethical.<br>
<br>
The bottom line for me is what an employee of the subsidiary of the
municipal pension plan involved in the deal wrote to the head of the
pension plan, “I don’t trust the buyer, and there is no doubt they are
using [the mayor] in this process, but it is difficult to tell her
that, especially with her son involved.”<br>
<br>
It should never be difficult for a city employee to tell the mayor
something because her son is involved. Her son should not be involved
in a deal that is important to the city (this was a big
hotel-convention center development), and if he has to be, the mayor
should disclose the fact publicly, have nothing to do with the matter
publicly or privately, and allow the council to assign someone who is not answerable to her
to be the city's representative with respect to the development. <br>
<br>
Robert Wechsler<br>
Director of Research-Retired, City Ethics<br>
<br>
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