Tuesday, November 27, 2012

Could Peter Kelly have gone the way of Rob Ford?

With the news of Rob Ford's removal from office in Toronto for conflict of interest, some Haligonians have been asking themselves whether the same thing could have happened to former mayor Peter Kelly.  With Kelly having chosen not to run in the last election, it's something of a moot point, but an interesting question about conflict of interest nonetheless.

The question refers to the cash for concerts scandal, during which Mayor Kelly was accused of having contravened the HRM Charter by signing off on a loan to a private concern promoter, an arrangement which was kept secret from council.  The scandal only came to light when the promoter failed to repay the loan, and resulted in the resignation of HRM CAO Wayne Anstey.  However, Kelly refused to step down as mayor despite calls for his resignation.

But it's what happened next that raises the potential conflict of interest.  The Auditor General's report on the scandal was tabled at council on June 14, 2011.  At that meeting, council decided against a motion to hold an inquiry into the matter.  At the subsequent meeting on June 21, 2011 council heard and defeated a motion to censure Kelly and suspend him as mayor for a week for his role in the scandal.

While some informed observers at the time suggested that Kelly would have to be removed as presiding officer at June 14, 2011 debate, I am told that Peter Kelly refused to step down from his position as chair of the council meeting at either meeting, despite the fact council was considering motions to conduct an inquiry into his behaviour, and ultimately to censure him. 

Mayor Kelly did decline to chair a subsequent meeting discussing the cash for concerts scandal in May 2012.  However, he referred to his refusal to chair as a "perceived conflict of interest" rather than a contravention of the Municipal Conflict of Interest Act.  Had there been a conflict of interest under the MCIA, Kelly would not only have had to resign the chair, but remove himself from the debate on the issue altogether.

By contrast, Rob Ford initially got in trouble for using his position (and his letterhead) as a city councillor to solicit donations to his private charitable foundation.  He was found by the city's ethics commissioner to be in breach of the Toronto city council's code of conduct and ordered to repay the money.  When the ethics commissioner's report came before council in 2010, despite being warned he was in conflict of interest, then councillor Ford chose to participate in the debate.  Mr. Ford refused to repay the amount as ordered.  The issue came before council in 2012, and despite again being warned of his conflict of interest, Mr. Ford spoke to and voted in the debate.  Council ultimately overturned the previous ruling and did not require Ford to repay.

An application was brought by a citizen of Toronto to have Mr. Ford dismissed as mayor.  In a detailed ruling released on November 26, 2012, Justice Hackland found that Mr. Ford was guilty of a conflict of interest, that Ford's actions were not the results of inadvertence or a good faith error, and that Ford must therefore be removed as mayor, although he was not barred from running for office again.

It would be impossible  to speculate on how a Nova Scotia court might have ruled on the conflict of interest in the Kelly situation.  There are some obvious factual differences between the two cases.  Rob Ford's removal did seem to turn in part on fact he was advised he was in conflict of interest, and chose to disregard.  It is not clear of whether Kelly was advised of his conflict of interest, and what role (if any) that played in his decision.  In addition, the Act is limited to direct of indirect "pecuniary" (i.e. financial) interests.  In Ford's case, the financial interest was clear: he would otherwise have been required to repay the donations.  In Kelly's case, the financial interest is a little less clear.  Kelly would not have had to repay the concert loan, although it is possible an inquiry might have resulted in charges for breaches of the Charter, including fines, or that a suspension would have entailed loss of salary, either of which would constitute a pecuniary interest.

A further reason it is hard to speculate is that the Ford decision may well be appealed, and we might get a different statement of the law from a higher court.

What I can say is that Nova Scotia's Municipal Conflict of Interest Act is nearly identical to the Ontario MCIA under which Rob Ford's was removed.  So where a mayor, councillor or municipal committee member is in a conflict of interest (as defined in the Act), it would be open to a citizen to bring an application to have that person removed from office.  And while a Nova Scotia court would not be bound to follow the Ford ruling, it would certainly have to consider it, given the similarities between the pieces of legislation.

The Act has its exclusions and defences, so removal is certainly not guaranteed.  However, where a conflict of interest occurs, Haligonians have the same accountability tool available to us as the people of Toronto.  All it requires is  one bold citizen prepared to prosecute the case.

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