Municipal Conflict of Interest An Important Matter

I was going to write about municipal conflict of interest this week, you know, with what’s happening in the Town of South Bruce Peninsula and all, because of Mayor Carl Noble’s financial interest in wind energy through a small energy company with a test wind turbine on his farm property near Mar. And then there’s his strong support for wind energy in general and specifically for another company’s controversial plan to develop a wind energy farm near Kincardine. 

This newspaper has editorialized about the issue earlier this week and I agree with most of the points raised. So I won’t belabour it too much again. I’m still more or less in holiday mood. And I have tons of other things on my mind that have nothing to do with this column. For one, the dew-mist is rising off my corn in the early morning sun; there’s lots of picking to be done. And I have promises to keep.

Do I seem to be mentioning my corn a lot these days and other aspects of my little market garden, which makes me some modest – and I stress that word – pocket money? Am I in a conflict of interest? How many other small or big market gardeners in this area – and there are quite a few – get to mention it even just in passing once in a while in a weekly column in the local daily newspaper? Should I refrain from talking about the weather this summer and how it affects farmers and gardeners and their crops? Should I back off raising concerns about global warming because sooner or later it leads me to the conditions in the field where I grow vegetables with varying degrees of success, depending on the amount of rain and sun, and my own questionable skills as a gardener?

Ontario’s Municipal Conflict of Interest Act governs the conduct of people elected to sit on municipal councils. There is no such act for journalists. But there is a code of ethics, written or not, that governs what we do. Much like municipal councillors, we should not be using our positions to further our own, private financial interests, beyond the pay we collect for doing our jobs.

There’s a line drawn somewhere. Sometimes it’s pretty clear, but mostly not. Sometimes it’s open to discussion or interpretation in the mind of the person involved, in the court of public opinion, and in a real court before a judge where municipal conflict of interest cases occasionally end up.

Now that’s another typically long preamble to get to the point finally: I’m pretty sure I’m not in a conflict of interest by mentioning my garden now and then, even when I praise and generally advocate for farmers in this space.

I also don’t think it’s all that clear that South Bruce Peninsula Mayor Carl Noble is in a conflict of interest when he takes part in debates and votes about wind energy at county council involving one energy company because he has inked a deal with another to erect a wind-testing tower on his property. Enbridge Ontario Wind Power, the company involved in the $400 million Enbridge wind-farm project, is not Tribute Resources Inc., the London-based company interested in Noble’s property. So far as I know, matters related to Tribute’s activities have not come before either county council or South Bruce Peninsula council for discussion in a manner that would require Noble to declare a conflict under the Act. I suspect a judge would have difficulty finding him in violation on that basis.

Under the Act an “elector” who thinks a member of a municipal council may have violated it can apply to a judge for a “determination” of the question. You don’t call the police and ask for an investigation. You don’t even call the Ontario Ministry of Municipal Affairs and Housing and complain; instead, you will no doubt be told about the legal process of making a court “application.” It is, to all intents and purposes, the same as filing a lawsuit. And it costs a lot of money, both to file and defend against. I know of one elector in this area who spent about $30,000 some years ago to take a local reeve to court. In that case, as happens more often than not, the judge found the reeve made a “bona fide error in judgement” and did not have to suffer the harsh penalties laid out in the act, including the loss of one’s seat on council and a prohibition against running again for up to seven years. So anyone considering taking a municipal councilor to court on conflict of interest allegations would be well advised to have a very strong, clear case.

Whether or not he ever ends up before a judge for a conflict determination, Noble has hurt his cause and created unnecessary controversy by not being as open and duly diligent about his personal involvement in wind energy as he might have been, and arguably should have been. He especially had the opportunity when a Tribute news release about the test tower was issued last December, and printed in the Wiarton Echo, to go out of his way to make it quite clear that the tower was on his property. Hindsight is 20-20, so it’s easy for me to say, but he might also have thought things over carefully and made a clear statement of his interest in wind energy, and the reasons why.

Instead, even now, he’s sending out confusing, mixed signals about his motivation.

On the one hand he was quoted in the recent, initial Sun Times news article about the situation saying he needs the money, the $6,000 annually he’s heard some farmers are getting to lease their land for a turbine. On the other, he says he’s not so much doing it for his own sake, as for the future economic well-being of the municipality. He said he accepted less than he might have received from Tribute to put the test tower on his land “to prove we could put wind energy around here to anybody who wanted to lease their land to the company.”

Municipal councillors are strongly advised by municipal law specialists to be very careful about municipal conflict of interest rules, to read and understand the act thoroughly and be proactive about exercising “due diligence” to protect themselves against conflict of interest allegations, especially if they end up in court.

In an article, The Municipal Conflict of Interest Act: Consideration for Councillors, Stephen J. D’Agostino of the prestigious law firm Thomson, Rogers, suggests, for example, members of municipal council should consider listing “every person, body, etc. who could potentially create a conflict for the councillor, and then write to each to advise them of the councillor’s obligations under the act.”

Though it could be a “daunting task,” such documentation, in company with proof of formal conflict declarations at council meetings, carries a lot of weight should conflict allegations arise. “The Act provides significant benefits to councillors who are found to have contravened the Act but who have tried in good faith to comply,” D’Agostino adds.

Municipal conflict of interest is clearly an important matter. It’s most disheartening to see several members of South Bruce Peninsula council who support Noble don’t seem to have a clue; they don’t see what all the fuss is about or they think it’s Noble’s “personal business.”

Not when it conflicts with public business it’s not. You get elected to serve the public interest. If your personal, financial interests get mixed up in the public’s business you butt out. It’s that simple. And current member of council, or anyone thinking of running for council this fall, should know that.

Originally published in The Sun Times in 2006.

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