By John Arendt (see the online version of the Capital News)
While a group of 15 Summerland residents have petitioned RCMP to investigate possible wrongdoings in the last municipal election, a prominent local government lawyer contends council members did not contravene any election laws.
Don Lidstone, who has spent more than 30 years working with local governments, said the allegations that the council is illegitimate are inaccurate and legally unsubstantiated.
The allegations came after questions were raised about a series of anonymous advertisements in the Summerland Review and other area media. Later, Mark Ziebarth took responsibility for those ads which bore the name Citizens for Smart Governance.
Candidates are not allowed to accept anonymous donations of more than $50 under the Local Government Act. However, Lidstone does not believe council members could be disqualified.
“Even if it could be proved that council members contravened the campaign finance provisions of the Local Government Act — and I do not think they contravened the act — in my opinion, the council members would be able to establish that they exercised due diligence, which is a complete answer and defence under the statute,” he said.
Under the Local Government Act, there are two grounds for disqualification that relate to campaign finance disclosure statements. A member may be disqualified for failing to file a disclosure statement within the specified time frame or for filing a false or incomplete statement. If a council member exercised due diligence to ensure the requirements were met, they would not be disqualified, Lidstone said.
He added that each of the council members filed their statements within the required time frame and that each would be able to show they exercised due diligence as they all disclosed the value of anonymous contributions.
“The courts will not lightly disqualify an elected official, especially where, as here, the official can show they exercised good faith and reasonable judgment,” Lidstone said.
While legislation prevents candidates from receiving anonymous contributions valued at more than $50, Lidstone said the council members cannot be disqualified for two reasons. He said the value of the ads is deemed to be nil under section 89(2) of the Local Government Act. Even if the ads are determined to have a value, Lidstone said the act provides that a council member is not guilty if they exercised due diligence to prevent the commission of the offence.
Ziebarth placed the ads as a volunteer as defined in the act and received no compensation for doing so. As a result, Lidstone said there is no obligation on council members to turn over the value of the contributions.
Last week, Frank Martens, representing a group of 15 Summerland residents, brought a complaint to the Penticton RCMP, asking them to investigate possible wrongdoings.
He said anonymous advertisements and the amounts of anonymous donations claimed by mayoral and councillor candidates violated election legislation.
“We’ve pretty much looked at all the regulations,” Martens said. “You can’t go off on your own and place ads for candidates.”
The investigation process could take up to four months, Martens said. Once it is completed, he hopes the election legislation is changed to become a little clearer.
Peter Waterman, who lost his bid to become Summerland’s mayor in last year’s election, assisted Martens with the complaint.
“There’s a reasonable case to proceed,” he said. “The contraventions of the election act in this case are stronger than in Central Saanich.”
In Central Saanich, an RCMP investigation recommended 19 charges be laid. But the attorney-general’s criminal justice branch did not proceed, saying there was not a substantial likelihood of conviction and it was not in the public interest.
Martens does not hold out much hope that anything will happen beyond the investigation.
“There’s not going to be too much done, in my opinion,” he said.
If the 15 residents wish to take council to court following the investigation, he said the cost of the legal process would be at least $20,000.
No matter what the outcome, Waterman said he is disturbed by the effects of the anonymous ads.
“It’s certainly not a good idea for a council to be receiving this negative publicity,” he said.
While Martens and Waterman believe there were wrongdoings on the part of council members over their disclosures, municipal clerk Gillian Matthews, who was the elections officer last year, disagreed.
“No council member has done anything that would result in their disqualification with respect to the filing of their campaign financing disclosure,” she said in a recent news release.
She explained that the two reasons for disqualification are failure to file the required disclosure and filing a false disclosure.
All disclosures were filed on time, she said. She added that a person is not disqualified if he or she exercised due diligence to ensure that the requirements of the legislation were met.
http://www.bclocalnews.com/news/79358742.html?c=y&curSection=/okanagan_similkameen/kelownacapitalnews&curTitle=BC%20News
(Dec 15/09 online version of the Capital News)
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