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Judicial Dismissal of Toronto's Mayor
Monday, December 3rd, 2012
Robert Wechsler
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 judicial
dismissal of Toronto's mayor for a conflict of interest violation.
The conflict situation was minor, but the way the mayor handled it
and the way Toronto's ethics laws relating to council members, includingOntario's
Municipal Conflict of Interest Act, are set up led to an extreme
penalty and an ugly situation.
I dealt with the underlying conflict situation in a blog post three months ago. 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.
According to a recent article in the Globe and Mail, 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.
The Integrity Commissioner
Toronto's integrity commissioner investigated the allegations and, in a series of reports, 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.
The Role of the Courts
But the integrity commissioner's involvement isn't all there is to Toronto's ethics law. In fact, the commissioner was applying a council code of conduct. 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:
The Role of the Council
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 an article in the Toronto Star and another in the Globe and Mail back in September.
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.
Withdrawal from Participation Rule That Goes Too Far
And the court did not ignore the mayor's vote. The Conflict of Interest Act is very explicit:
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.
Arrogance, Entitlement, and Ethical Misconduct
A Globe and Mail column last week by Margaret Wente 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.
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."
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.
From all appearances, Toronto's mayor, unlike Montreal's, 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.
What Should Change
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.
Robert Wechsler
Director of Research-Retired, City Ethics
---
I dealt with the underlying conflict situation in a blog post three months ago. 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.
According to a recent article in the Globe and Mail, 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.
The Integrity Commissioner
Toronto's integrity commissioner investigated the allegations and, in a series of reports, 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.
The Role of the Courts
But the integrity commissioner's involvement isn't all there is to Toronto's ethics law. In fact, the commissioner was applying a council code of conduct. 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:
...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,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.
(a) shall, in the case of a member, declare the seat of the member vacant . . .
The Role of the Council
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 an article in the Toronto Star and another in the Globe and Mail back in September.
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.
Withdrawal from Participation Rule That Goes Too Far
And the court did not ignore the mayor's vote. The Conflict of Interest Act is very explicit:
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 ...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).
(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. R.S.O. 1990, c. M.50, s. 5 (1).
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.
Arrogance, Entitlement, and Ethical Misconduct
A Globe and Mail column last week by Margaret Wente 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.
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."
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.
From all appearances, Toronto's mayor, unlike Montreal's, 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.
What Should Change
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.
Robert Wechsler
Director of Research-Retired, City Ethics
---
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