Friday, April 05, 2013

Sam Katz won Winnipeg lost!

Good Day Readers:

It was nice to read in today's Winnipeg Sun Mr. Chan will be appealing Friday's Queen's Bench decision. It also sounds as though an ad hoc legal defence fund has emerged an idea that came to CyberSmokeBlog shortly after the decision. The ruling is very troubling for multiple reasons:

(1) The province's Municipal Council Conflict of Interest Act is obviously flawed or as Councillor Harvey Smith was heard to say shortly after the Hearing, "Today was a test of the legislation and it failed" to which should be added "miserably"

(2) Robert Tapper Mr. Katz's lawyer continually tried to down play the monetary amount. It was only a $3,000 Christmas party. We, ask a single parent, an unemployed worker, student or senior citizen whether $3,000 is an insignificant amount. What do you figure they'll tell you?

(3) Toronto Mayor Rob Ford was initially removed from Office because he illegally raised only $1,800 in campaign funding. He appealed and, unfortunately, the decision was over turned leaving the City with a Big Goof until at least the next election

(4) Justice Keyser's reasoning that to order Sam Katz removed from Office would trigger an expensive election constituting a disproportionate response simply does not wash. Unless it was missed, not once did she cite the Toronto experience as a possible case precedent. A Toronto election could have cost how many times more than one in Winnipeg?

(5)  Her ruling failed to consider opportunity costs or externalities. While admittedly the Hearing only focused on one incident were there others that ultimately deprived the City of revenues impacting on taxpayers. But one example. Sam Katz working through a property management company was able to secure a sweetheart deal by which a parking lot at The Forks next to Shaw Park home of his beloved Winnipeg Goldeyes was rented for the princely sum of $1 a year. How much revenue could have been raised had it rented for the going market rate (lost opportunity costs)?

Below is an instructive article from The Toronto Star about the Mayor Rob Ford fiasco which Manitoba Court of Queen's Bench and the Appeals Court may find useful when Mr. Chan challenges the decision..

Clare L. Pieuk
Rob Ford decision: What the experts think
Some say change the law; others advise politicians to change their ways; some just see uncertainty.
Stephen D'Agostino sees the legacy of the ruling in an imperative for municipal politicians to their personal financial interests from their public duties.
By Robyn Doolittle/City Hall
Friday, January 25, 2013

Mayor Rob Ford has won his appeal. He will stay on as mayor, but city hall is far from “back to normal.”

Here, lawyers, academics, political strategists and community organizers react to today’s landmark decision.
“In the wake of this episode, it’s clear that the Municipal Conflict of Interest Act (MCIA) is in need of review.”

“Civic officials have an obligation to respect the law (and not just in the manner they think it should be applied). But as Justice Hackland noted in his ruling, this case surfaced a couple of troubling issues. First, the mayor could not defend himself regarding Council Code of Conduct violations without contravening the MCIA. Second, the penalty — removal from office — is a blunt instrument, leaving little discretion to ensure that the punishment is proportional to the violation. Both should be addressed.”

“But this is for tomorrow. Today, Torontonians should be glad their mayor can get back to work.”

André Côté is the Manager of Programs and Research for the Institute on Municipal Finance and Governance, at the University of Toronto’s Munk School of Global Affairs. He is the author of a recent paper calledThe Fault Lines at City Hall: Reflections on Toronto’s Local Government’.
  • Stephen D'Agostino — Conflict of interest lawyer
“This is an important decision because it involves one of Canada’s most important municipal politicians, not because it raises new law. In overturning the lower court decision the court focused on whether the mayor had a financial interest in the vote. Finding he did not, because the vote was unlawful, there could be no conflict of interest. The saga ends there. Recent court of appeal decisions make it clear that Magder has no hope of a further appeal.”

“The legacy of this case will be the important reminder it serves to all municipal politicians to carefully separate their personal financial interests from their public duty and the chilling effect its cost will have on residents who seek to bring politicians under scrutiny for conflict violations.”

Stephen D'Agostino is a partner at Thomson Rogers where he practises municipal and planning law. He regularly provides advice on conflict of interest matters to councillors, trustees and residents. Recently D'Agostino acted as counsel for Arnaldo Amaral in the conflict of interest application against TCDSB trustees Angela Kennedy and Barbara Poplawski.
  • John Mascarin – Municipal lawyer
Many were shocked by Justice Charles Hackland’s decision in November to remove Rob Ford from the mayor’s office. The decision has been, in seemingly equal measures, heralded as lucid and justified and vilified as undemocratic, draconian and just plain wrong. In my view, Justice Hackland delivered the only decision he could in view of the constraints of the Municipal Conflict of Interest Act. He duly considered the evidence before him, including Rob Ford’s own testimony, and applied the law and the jurisprudence interpreting the statute correctly.”

“The Divisional Court has heard the appeal and has ruled that there was an error in law. It is not unusual for a court to be hesitant to apply the harsh strictures of the statute and to attempt to find a way to save a contravening member’s seat. That is what has happened in this case. The decision is based on the point that council had no jurisdiction to impose the penalty and that it was a nullity and that everything that flowed from that was a nullity. It will lead to uncertainty in the application of the law.”

John Mascarin is a partner with Aird & Berlis LLP in Toronto. He is a certified specialist in municipal law – local government and land use planning and development.
  • Mitchell Kosny — Academic
“Mayor Ford may have won the battle today, but I'm not sure he's won the war at city hall that will continue to rage over the next two years. . . and perhaps beyond.”

“It's unfortunate that so much of this will now be cast in a "we won/you lost" framework, and only the 'victor' gets to swagger in the puffery of righteousness. If you think civility was a forgotten practice at city hall during the past few years, I think “we ain't seen nothin' yet”! It's a real stretch to think of any consensus emerging now about getting back to the business of running a city and putting personal issues aside.”

"I think it's going to be a raucous two years: today was the offical start of the next municipal election.”

“If you're not with us, you're against us: that's the attitude that victors too often take. Wouldn't it be nice to see the mayor extend an olive branch right and take the high road as if peace, order and good government still mattered to all Torontonians?”

Mitchell Kosny is associate director of the Ryerson School of Urban and Regional Planning. Much of his work is in governance/decision-making, and he is former chair-Toronto community housing and chair-City of Toronto committee of adjustment.
  • Chad Rogers — Conservative political strategist
“As Gerald Ford once intoned, ‘Our long national nightmare is over.’

“Our elected mayor, still the mayor. He raised money for charity. We have a deeply flawed conflict law and a cadre of opponents who simply lose their minds where Rob Ford is involved.”

“The decision today is the culmination of a petty campaign that began the day 383,501 Torontonians elected Rob Ford Mayor.”

“The snobs of Toronto, who cannot and will not ever abide our mayor, should start applying their efforts to something constructive ... maybe the Olivia Chow campaign?”

Chad Rogers is a founding partner at Crestview, a public affairs and government relations firm. He is a Conservative campaign strategist who has worked on campaigns at the municipal, provincial and federal level across Canada.
  • Marcel Wieder — Liberal political strategist
“There is an old saying that it is never the crime that’s the issue but the cover up.”

“Most Torontonians don’t think what Mayor Ford did was egregious or criminal but there is a big question mark around his judgment.”

“Ford’s actions after rejecting the conflict of interest finding and his continued bulldogged determination that ultimately landed him where he is today. Thus his actions after the fact were worse than the original charge.”

“He may have beaten these charges today but he still has more trouble ahead.”

Marcel Wieder is President and Chief Advocate at Aurora Strategy Group. He is an award-winning political consultant with nearly four decades of municipal, provincial and federal experience. He has also been the lead consultant for the Working Families campaign, the largest third party independent campaign in Ontario.
  • Nelson Wiseman — Academic
“Rob Ford has won. Toronto has lost. The decision notwithstanding, he has repeatedly rejected good advice, embarrassed supporters, demonstrated incompetence, and neglected his duties. Ford’s calling is coaching high school football. Those who voted for him should have known what they were getting and deserve him. He has been a major distraction at a time when Toronto needs more good governance. Nothing in the court ruling condones his disgraceful behaviour.”

Nelson Wiseman specializes in Canadian government and politics at the University of Toronto. He is the author of in search of Canadian political culture and his article, “Explaining Party Politics at the Local Level,” appeared in the summer issue of Public Sector Digest.
  • Steph Guthrie — Community organizer
"The success of Rob Ford’s appeal doesn’t especially surprise me. I imagine legislators are reluctant to set precedent that would make it easier for politicians to be removed from office without an election.”

“However, I worry about the precedent they’re setting for politicians to blatantly ignore the rules that govern their conduct on citizens’ behalf. More importantly, I worry about the message this lenient decision will send to other politicians who tend toward unethical conduct.”

Steph Guthrie (@amirightfolks) is a feminist advocate and community organizer. As founder and executive director of Women in Toronto Politics, she coordinates events to promote women’s voices in discussions about Toronto politics on and off council floor.
So it looks like Mayor Ford is here to stay. I hope he spends his final two years in office trying to build consensus on major issues, rather than playing a divisive role on city council by focusing on unnecessary wedge issues that polarize the debate. If he doesn’t take a collaborative approach, he may find himself increasingly ostracized amongst his colleagues at city hall. Council has proven repeatedly that they are both willing and able to operate on their own, with or without his support.”

Dave Meslin is a civic advocate, writer and trainer. He is currently working on a book about how we can build a culture of political participation.
  • Jodi Shanoff — Polling expert
“Polls spanning the public trials and tribulations of Mayor Rob Ford reveal he is not held in positive regard by a majority of Toronto voters, that seven-in-ten support Judge Hackland’s finding that Ford acted in and showed contempt for conflict of interest rules, and that more than two-thirds of voters would not return him to office on their next opportunity to vote.”

“This morning’s finding keeping him in office won’t likely do much to reverse or even assuage these bad vibes around our still-standing mayor. In the midst of all of the bad press and court proceedings, fewer than one-in-five Torontonians were confident that city business would be able to proceed as usual, suggesting that perceptions of the mayor’s effectiveness as a leader have been significantly impacted by his personal judgment being repeatedly called into question.

“If issues like this continue to orbit the mayor, it is unlikely that this latest finding will have much, if any redemptive impact on his personal standings. Whether he can turn that around in time for October, 2014 may depend on a Hail-Mary pass that eclipses even this morning’s decision.”

Jodi Shanoff is senior vice president with Angus Reid Public Opinion/Vision Critical. She has more than 15 years experience as a public affairs professional in Canada.


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