Saturday, July 17, 2010

Conflict of interest penalties must have some consequence - Daphne Bramham

Conflict of interest penalties must have some consequence


By Daphne Bramham, Vancouver Sun July 7, 2010


The muddy waters of municipal conflict of interest got another stir late last month, just weeks after then community development minister Bill Bennett admitted that the law isn't nearly as it ought to be.

This time, though, it's not the law itself that's been found wanting. Instead, three judges of the B.C. Court of Appeal agreed that both the process and the penalty are problematic.

The justices exonerated Spallumcheen Mayor Wybren Jan (Will) Hansma of conflict of interest. They upheld an earlier B.C. Supreme Court decision that Hansma had not acted improperly when he voted in March 2008 to amend the Official Community Plan to allow all A-2 parcels of less than 75 acres that are not in the agricultural land reserve to be rezoned as small holdings.

Rezoned in this way, the parcels can then be subdivided into lots no smaller than 2.5 acres.

Hansma owns a four-acre plot adjacent to a 10-acre parcel owned by his two sons, and 32 Spallumcheen electors sought to have the mayor disqualified from office because the change potentially gave Hansma and his sons a financial benefit.

All of the judges disagreed with the electors.

Hansma's property is simply too small, they said, and there was no evidence that he would benefit if his sons subdivided their property.

In this case, the judges had no problem deciding what conflict of interest means in the civic context. But there have been a number of cases where jurists have mentioned how difficult it is to interpret the law.

An example of its complexity played out recently in Delta. In late May, Delta Coun. Heather King recused herself from voting on a development, saying that she had a conflict because she'd accepted a campaign donation from Ron Toigo and his company, while others who had received similar donations stayed on and voted.

Both sides believed that they were doing the right -- and legal -- thing.

But what the Spallumcheen case revealed is an entirely different problem.

The process takes so long that the punishment -- disqualification from holding office until the date of the next general election -- is likely to be moot by the time the case is decided.

"The potential period of disqualification in this case has long since lapsed, there having been a general local election in November 2008," they wrote in the unanimous decision.

"It raises the serious issue. ... Were we to refuse to hear the appeal as moot, it would be a rare case that could be advanced through the court process, given the election cycle in municipal governance."

The justices noted that the issue in the case was serious, and the allegations of consequence to both the electors and to Hansma -- and it's an issue that has the potential to arise again.

For those reasons, the appeal court heard the case even though, had the justices overturned the lower court's decision, Hansma would have been free to go back to City Hall and resume the mayor's chair.

But what it means is that without some amendment, there's a very real possibility that other mayors and/or councillors could break the law, enrich themselves and remain on council even after they've been found guilty.

It's ridiculous.

The recently dissolved municipal-election task force erred in not addressing any aspect of conflict of interest in what was to have been a sweeping review of the elections provision.

And it's all the more reason that Ben Stewart, who replaced Bennett, needs to rethink the decision to leave it alone until after the next provincewide municipal vote in November 2011.

Bennett has said it's already going to be a rush to turn the task force's recommendations to limit spending, increase transparency and improve enforcement into law before next spring.

A full review of conflict of interest may not be possible between now and then.

But it surely wouldn't take that long to come up with a penalty that would ensure that any future politicians who try to line their own pockets would face a meaningful consequence.

dbramham@vancouversun.com

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