Police called over campaign donations - Penticton Herald - Dec 30/09

Police called over campaign donations

By Susan McIver special to the Penticton Herald December 30, 2009

Questions about campaign finances of the Summerland mayor and councillors led a group of concerned residents to request a police investigation.

Earlier this month, 15 Summerland residents formally requested that the RCMP conduct an investigation into the controversy over financial disclosure statements from the 2008 municipal election.

The request came on the heels of widespread media coverage of alleged wrongdoings.

At issue are numerous anonymous advertisements that appeared in local newspapers during the 2008 campaign in support of the current councillors and mayor.

In the official complaint, the residents say they are particularly concerned about these anonymous donations in excess of $50, contrary to Section 87 of the Local Government Act.

All council members stated in their campaign financing disclosure statements that they took donations from unnamed individuals, groups or corporations for newspaper ads that exceeded the legal threshold. They listed these anonymous contributions as "in-kind" when, in fact, they were cash transactions.

For the newspaper ads to be considered "in-kind" donations, they would have had to be provided at no cost by the newspapers‘ owners - in which case they would not be anonymous.

Some council members publicly said they exercised due diligence by seeking advice from the chief electoral officer before completing their disclosure statements.

Chief electoral officers provide information to candidates, including the candidate‘s guide to local elections, but they are not responsible for detailed interpretations of regulations or the accuracy of financial statements.

The candidate‘s guide states that disclosure rules exist to provide information about who is financially supporting each candidate and how much candidates spend on their campaigns.

The Summerland residents are also concerned about the two groups, perhaps more, that promoted candidates and viewpoints in the 2008 municipal elections and spent more than $500 doing so.

Individuals or groups spending more than $500 are legally required to register with the local chief elector officer.

The day after a front page opinion piece appeared in the Vancouver Sun with the headline Illegal Donations Mean Summerland has no legitimate Council, area resident Mark Ziebarth said he alone was behind the Citizens for Smart Governance.

Smart Governance ran advertisements endorsing the current mayor and councillors in local newspapers.

A Penticton businessman, Ziebarth said because he did not collect funds from other people, he did not qualify as a campaign organizer.

The provincial guide for campaign organizers says any person or group becomes a campaign organizer when they engage in an election campaign that augments or operates in place of a candidate‘s campaign.

In an interview with CBC Radio, Ziebarth said that, as an American, spending $2,000 on endorsement ads was the only way he could participate and influence the election‘s outcome.

When asked if he would do it again, Ziebarth replied, "I‘d do it with double barrels - twice as many ads, twice as much fun."

Unlike the Summerland candidates, at least two candidates facing a similar situation in the West Vancouver municipal election publicly dissociated themselves from anonymous ads.

http://www.pentictonherald.ca/stories.php?i=233446&a=41745&d=12445&k=145d85b0ccb9f651d4909c4193d18b2e

"Waiting for the truth" - Summerland Review editorial

"Waiting for the truth" - Summerland Review editorial

December 17, 2009

A group of 15 Summerlanders has asked the RCMP to investigate allegations of wrongdoings in the lead-up to last year’s municipal election.

The investigation comes after a number of anonymous third-party ads were run in the Summerland Review and other area newspapers. Some of the ads promoted a slate of candidates, one endorsed mayoral candidate Janice Perrino only and several urged voters reject anti-growth platforms.

The result of the election was a decisive win for Janice Perrino and each of the candidates listed in the seven-name slate.

Since the news stories ran, there has been much speculation about who may be involved, the motivations behind the advertisements and the possibility of groups of conspirators, lurking in the background but shaping the outcome of the election.

Others are questioning the motives of those who have now raised their concerns over the ads.

At this point, it is important to remember that the story is still unfolding.

While an investigation has been requested, it has not yet been conducted.

It will likely take months before a proper investigation can be completed.

Right now, it is much too early to make any conclusions. It is also unfair to point fingers until the investigation has run its course.

We live in a society in which the presumption of innocence is a fundamental pillar of our justice system.

None of us would want to be judged by those who do not know the whole story.

The candidates in the last election, those who placed advertisements, the elections officer and others involved deserve the same level of respect.

We ask that everyone, on all sides of this story, would keep an open mind until the facts are known.

http://www.bclocalnews.com/okanagan_similkameen/summerlandreview/opinion/79467867.html

"Lawyer refutes allegations against Summerland council"- Capital News Dec 15/09

"Lawyer refutes allegations against Summerland council"

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)

comments by Don DeGagne, Summerland CAO

It is not my intention to become embroiled in a political debate as that is not my role. However, as the Chief Administrative Officer of the District of Summerland, when the media and others are suggesting that the political leadership of this community is not legitimate, I feel I need to speak up. While I am not in a position to defend the individual actions of the council members, I feel it is my role to bring forth information to the general public in defense of the integrity of the corporation and the reputation of the community.

Accordingly, last week I worked with the Corporate Officer to clarify the situation through a media release, based on the facts at our disposal. That media release clarified the law with respect to potential disqualification of council members as it relates to disclosure of election expenses. It concluded that based on the information provided, there was no basis for disqualification and therefore, the Council was a valid duly elected governing body.

Subsequent to that I was contacted by Don Lidstone, QC, a prominent municipal lawyer who has worked to promote and defend local government in Canada for over 30 years. He indicated to me that he was very interested in the allegations that Council was not legitimate and wished to learn more about the situation. After providing Mr. Lidstone with the information at hand, he indicated it was unlikely a case for disqualification could be established and he was very concerned that Summerland's good name could be tarnished by unsubstantiated allegations in the media. He then indicated that he would further consider the matter and if appropriate, he would write a letter of opinion to the media outlets involved in an attempt clarify the status of the Summerland Council. He clarified that he would be doing so as a concerned citizen and there would be no cost to the municipality.

I have made copies of Mr. Lidstone's letter to the media and the public. I will not get into the legal details but, Mr. Lidstone's conclusion is clear and I quote;

"In my opinion, the allegations are inaccurate and are legally unsubstantiated. Even if it

could be proved that Council members contravened the campaign finance provisions of

the Local Government Act ("LGA"), 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."

This opinion by Mr. Lidstone makes it very clear that this Council is a legitimate governing body for the District of Summerland and I think it is very important for the public to know that. That is why I bring this to your attention.

Don H. DeGagne, CAO

posted on District of Summerland website - www.summerland.ca

http://www.summerland.ca/newsitempopup.aspx?ID=352

"Taming wild municipal campaigns" - Paul Willcocks Dec 12, 2009

As Paul Willcocks notes in his column "Taming wild muncipal elections" there is a need for new election rules for local government elections. And a need for spending limits.

"Inquiry to shed light on election" editorial by James Miller - Okanagan Sunday, Dec 13, 2009

"Citizens ask RCMP to investigate Summerland election donations" - Vancouver Sun Dec 11, 2009

Citizens ask RCMP to investigate Summerland election donations

BY DAPHNE BRAMHAM, VANCOUVER SUNDECEMBER 11, 2009

Fifteen citizens have asked the RCMP to investigate whether the Summerland mayor and city councillors breached the Local Government Act by accepting anonymous donations of newspaper advertising, pamphlets and cards during the 2008 election.

Under the act, it is illegal to both give and receive anonymous contributions valued at more than $50.

The penalty for candidates is disqualification from holding office and from running again until after the next general election. The penalty for donors is disqualification from participating until after the next general election.

Everyone on Summerland council, including Mayor Janice Perrino, claimed at least one anonymous donation worth more than $50 in financial disclosures filed last March. If the complaints are upheld in court, a new election could be ordered.

In a thick packet delivered Thursday, the citizens also asked RCMP to investigate who was behind newspaper ads that -- among other things --accused slow-growth advocates of being anti-family.

They noted that no groups or individuals registered as either elector organizers or campaign organizations, as the act requires, and none filed the required financial disclosures.

Frank Martens is one of the 15 citizens. He called the whole election "a farce" with no attempt by the council members to disclose who was funding their campaign, even though they all seemed to know how much the ads, pamphlets and cards were worth.

But Martens said, "I don't expect anything to happen. Look what happened in Central Saanich."

He might well have added Langley and West Vancouver. In all three, individuals have complained to police because strangely, the act leaves it up to citizens to enforce the election rules.

RCMP investigations in Langley and Central Saanich concluded. In Central Saanich, RCMP recommended 19 charges be laid. But the attorney-general's criminal justice branch decided against it, saying there was not a substantial likelihood of conviction and it was not in the public interest.

No charges were recommended in Langley, where among other things, two B.C. cabinet ministers endorsed a slate of candidates.

Insp. Lesley Bain wrote the complainant in June saying: "The RCMP has been assured that Crown counsel and the ministry of community and rural development are aware of the difficulties that have arisen in the 2008 municipal elections and are considering options that will ensure a better awareness and application of the law in the next local election."

Bain also noted that a senior member of the commercial crime section had been asked to prepare a report outlining some of the issues identified with the act during the course of the investigation.

(The B.C. government recently appointed a task force that has until May 30, 2010 to recommend changes aimed at improving the "fairness, accountability, transparency and public participation" in local government elections.)

But it's the West Vancouver complaint that most closely resembles the one in Summerland. West Vancouver Police investigated Low Tax, Low Growth, which ran four ads endorsing a slate of candidates. It never registered as an elector organization or campaign organizer or filed a financial statement. No one knows who was behind it, including Coun. Michael Lewis, who received an endorsement.

Unlike the Summerland candidates, Lewis did not list the anonymous endorsement in his financial disclosure. Instead, he immediately went to the media to dissociate himself from the ad and after the election, he and campaign manager, David Marley went to police.

West Vancouver Police investigated and recommended charges. Again, the Crown prosecutor refused to go ahead. Lewis and Marley have asked Attorney-General Mike de Jong to review the decision.

No one has yet admitted being behind the shadowy group, unlike what happened in Summerland. There, Penticton businessman Mark Ziebarth sent out a letter last week saying he was the only person behind Citizens for Smart Governance, which ran four ads in the Summerland Review and one in the Penticton Herald endorsing Mayor Perrino and the successful council candidates.

"In order to have some fun at the expense of the antediluvian Smart Growth crowd, I named myself Citizens for Smart Governance and published my ads under that banner," Ziebarth said in a letter to the editor published in the Review.

In a subsequent radio interview (http://tiny.cc/VIEID), Ziebarth said that, as an American, spending $2,000 on endorsement ads was the only way he could participate and influence the election's outcome.

Asked why he didn't do it under his own name, Ziebarth replied: "I wanted to see if it would get a rise out of people and apparently it did."

Named Penticton's business leader of the year in 2007, Ziebarth was active in U.S. politics before moving to Canada.

According to AllBusiness.com, Ziebarth spent five years as a fundraiser for the conservative Heritage Foundation before moving on to publish business and political newsletters. His company, Bonegarde Media, publishes training and education material for businesses and is Penticton's fourth largest employer.

Only a few days earlier, the District of Summerland issued a press release saying that "in an effort to be open, honest and transparent" council members disclosed the value of the ads placed by an anonymous party. It went on to say that council members "advise [that] these anonymous ads were placed by a third party without their knowledge, involvement or consent."

Yet two councillors --Gordon Clark and Bruce Hallquist -- wrote on their disclosures that the donors were anonymous "for reasons of privacy."

Martens is probably right that nothing will happen. But he is right that municipal elections have become a farce in this province because there is no proper oversight, no proper enforcement and no regard for a process that's at the root of democracy.

dbramham@vancouversun.com

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