Does a Declaration of Fear of Personal Liability Constitute a Conflict of Interest?
Ron Bolin: April 6, 2015
The basic rules relating to conflict of interest are found in sections 100 and 101 of the Community Charter:
100(2) If a council member attending a meeting considers that he or she is not entitled to participate in the discussion of a matter, or to vote on a question in respect of a matter, because the member has
(a) a direct or indirect pecuniary interest in the matter, or
(b) another interest in the matter that constitutes a conflict of interest,
the member must declare this and state in general terms the reason why the member considers this to be the case.
101(2) Once the conflict is declared the elected official must:
• leave the meeting;
and must not:
• participate in any discussion of the matter at such a meeting;
• vote on a question in respect of the matter at such a meeting; or
• attempt in any way (before/during/after a meeting) to influence the voting on any question in respect of the matter
The elected official may return to the meeting once the matter that gave rise to the conflict is no longer under discussion.
At the Council meeting of March 2, 2015, Mayor McKay made the following statement which was later echoed by some others:
This statement gives rise to the question of whether Mayor McKay’s statement of his fear of personal liability in the matter of the Colliery Dams constitutes a matter of “direct or indirect pecuniary interest” such that it triggers cause for a Challenge of his Qualification for office (see Division 7 of the community Charter, Sections 110-113).
Former Mayor Korpan has been the only response received to this time. You will note that I have requested, and received, his permission to share his thought on the matter with others with the caveat that I note that he is providing his comments as a citizen and not as a lawyer.
I will be interested in your thoughts and comments on the question and the basis of any appeal to the Supreme Court of BC. in the matter. At what point is our Council simply a tool of provincial (as well as municipal?) bureaucrats?
Ron
PS: My apologies for format problems which I thought it better to copy as received.
___________________________________________
From: Ron Bolin [mailto:rlbolin@telus.net]
Sent: April-02-15 9:40 PM
To: Gary Korpan
Subject: Question on Conflict of Interest
Hi Gary:
Hope I can bounce something off of you regarding Conflict of interest, remembering that you were on Council during the time of Bill King’s Conflict question.
I believe the statement from Mayor McKay in the attached clip and (later joined by Councillors Thorpe and Pratt), indicates a conflict of public duty with personal liability which represent a Conflict of Interest in the meaning of Sections 100 –113 of the Community Charter.
Can you indicate whether you think this idea is out to lunch and, if not, offer any thoughts on the details of the process of disqualification by 10 or more electors of the municipality as to filing the complaint, costs, etc. (Section 113 of the Charter is a bit vague in this area). As the statement was made in the March 2 Council meeting, only about 13 days are left to file a complaint in this regard, so time is of the essence. Do you remember the story and sequence surrounding the King complaint? And can you offer any comments or suggestions?
Ron
from: Gary Korpan
Sent: Friday, April 03, 2015 11:49 AM
To: ‘Ron Bolin’
Subject: RE: Question on Conflict of Interest
Hi Ron
Here is the reply I recently sent to a similar question (on probably the same issue).
Court Application (section 111 Community Charter)
If it appears to them that a person is disqualified as referred to in section 110 and is continuing to act in office,10 or more electors of the municipality, or the municipality (authorized by resolution passed by a vote of at least 2/3 of all council members) may apply to the Supreme Court for an order under this section that the person is disqualified under section 108.1 from holding local government office until the next general local government election.
The procedures for the court application and hearing, the status of the member pending the hearing and the costs of the proceedings are provided for in sections 111 to 113.
To sum up briefly, the consequences of a member of council debating and voting on a matter in which the member has a pecuniary conflict of interest are:
■ the member can be disqualified from holding office until the next election
■ the member’s vote can be invalidated, which could change the result if the margin was one vote (a tie vote is negative)
■ the resolution or bylaw voted on could be invalidated on the basis that the member’s conflict tainted the entire vote
■ the member can be required to give up to the municipality any financial gain realized by the member
All of these can result in expensive litigation for both the member and the municipality.
excerpted from A Handbook for Municipal Councillors & Mayors by Lori Staples, QC
So it is a process available…but, very few in BC lead to any effective deterrent result. And are costly. A highly regarded
trial lawyer recently said to me: “If you aren’t prepared to spend $10,000 minimum on a law suit, don’t bother.”
Cheers
Gary
Update: Ron, I looked at the video and believe that it would be very hard to convince a court that an elected official who
has been advised that they could be held legally liable personally if they do not act in good faith and vote on a public issue that they have been ordered to deal with (including a provincial regulatory body such as the Dam body) constitutes a “conflict of interest” as envisioned in the Community Charter. (The latter, in context, relates to gaining a pecuniary interest if they act contrary to public interest. In this case the public interest is to make a reasoned decision based on the evidence.
The fact that they could be personally liable if they do not act actually increases the need for them to vote. The exact opposite of the disqualification sections’ purpose.
Mind you, you can always test my ‘not a legal opinion as I’m retired so this is only my personal opinion’ thesis…but it will cost you time and money…grin.
I am impressed that the Mayor publicly included that factor in the discussion. The flip flop, delaying to act bs from Bestwick and crew are the insult to proper public process.
Gary
Cheers
Gary
Gary Korpan
‘I hate to be cynical…but reality forces me to that position’
250-758-9445
http://garykorpan.shawwebspace.ca/
GaryKorpan@Shaw.ca
—–Original Message—–
From: Ron Bolin [mailto:rlbolin@telus.net]
Sent: April-03-15 1:13 PM
To: Gary Korpan
Subject: Re: Question on Conflict of Interest
Thanks for the prompt response Gary. It is appreciated. I see your point and will advise accordingly.
Ron
PS: Do you care whether I pass your response on, or would you rather that I keep it to myself?
From: Gary Korpan
Sent: Friday, April 03, 2015 1:16 PM
To: ‘Ron Bolin’
Subject: RE: Question on Conflict of Interest
Feel free to use it as long as you note that it is a ‘personal’, not a ‘legal’ opinion.
Cheers
Gary
Gary Korpan
‘I hate to be cynical…but reality forces me to that position’
250-758-9445
http://garykorpan.shawwebspace.ca/
GaryKorpan@Shaw.ca
From: Ron Bolin [mailto:rlbolin@telus.net]
Sent: April-03-15 4:57 PM
To: Gary Korpan
Subject: Re: Question on Conflict of Interest
Thanks Gary.
In thinking about your “Update” response, am I incorrect in holding that your comment:
“that it would be very hard to convince a court that an elected official who has been advised that they could be held legally liable personally if they do not act in good faith and vote on a public issue that they have been ordered to deal with (including a provincial regulatory body such as the Dam body) constitutes a “conflict of interest” as envisioned in the Community Charter.”
is a variation of the Adolf Eichmann defense, i.e. that he was just following orders? Does the City have no other option than, on being told to jump, to ask “how high”? Councillor Yoachim’s motion which was apparently deliberately ignored did provide a plan for the management of the risk (please note that I am NOT proposing that that was the best approach). Is the City under no obligation to demonstrate that any proposal which they might put forward is both effective and efficient in response to a well defined problem? It seems to me that the definition of the problem has been at the centre of this controversy from day one on.
Ron
Ron
The difference being (and it is a huge difference), the Nazi’s ordered people to carry out predetermined policy decisions that were against natural justice and immoral by most human standards.
The Dam authority (as delegated by the Provincial govt…which creates municipalities) is requiring the municipal elected officials to do their democratic job using their best judgement as to what constitutes the public’s best interests among various options.
And, as you say, one would hope it “is both effective and efficient in response to a well defined problem”.
I agree that much of the contentiousness is due to conflicting ‘opinions’ as to the degree and type of risk…if any. We humans far too often cannot fathom real vs perceived vs imagined risk. Trying to attain wide consensus is even more difficult.
That is why we have responsible (one would hope) govt to make such decisions…though never easy, such decisions have to be made at some point.
See, not winning an election actually has its up side…grin.
Cheers
Gary
Gary Korpan
‘I hate to be cynical…but reality forces me to that position’
250-758-9445
http://garykorpan.shawwebspace.ca/
GaryKorpan@Shaw.ca
Posts and Comments on Nanaimo Governance 
I don’t understand why ‘conflict of interest’, by definition, is an issue when dealing with the extremely low risk associated with doing nothing further on the dam(s). If Golder & Assoc. deemed the dams safe structurally, only a decision has to be made on whether or not to deal with the highly unlikely dam overflow scenario. Additional overflow capacity could easily be accommodated with a relatively low cost solution: 1) drape or clad the top and dry side of the dam and allow an overflow or 2) install overflow piping from the lake to the bottom of the dam or 3) install a syphon pipe through the top of the dam from the bottom of the lake to the bottom of the dam with a lake level control valve at the bottom of the dam. The latter solution could enable the lake to be drained down anytime.
Please get on with it and stop wasting taxpayers money on a problem that really doesn’t exist.
Ron Palmer, Nanaimo
Mr. Palmer: I don’t understand it either… but it was raised by our Mayor.
I agree with your suggestions, all of which seem imminently reasonable to me, but apparently not so to our Staff which seems to be opting for much more dramatic -and costly- solutions.
Like you, and I suspect most Nanaimoites, I would like to see an end to this nightmare which is effective, efficient and economical. After all, who knows when we may be hit by an unexpected meteorite… It could happen… And I daresay we are not prepared.
At a somewhat recent Council meeting the question was raised; who exactly is running this place; whilst referring to the obvious tussle between Council & Staff.
Having the employee,Staff, be so influential in the decision making of the City is ,to me, quite disturbing.
One has to admit that Staff are a most important part of decision making for our political system.
It is a problem when it is perceived or actually is ;that staff make the political & financial decisions that the electorate have little or no say in.
Who wags the dog?
Upon reflection and consideration I have come to the personal opinion that Mr. Korpan is most probably correct and that an action in this matter would certainly be time consuming, might prove expensive, and in the end might falter. Accordingly I leave it to others to decide if they wish to join 9 of their peers and and proceed to action. As I have been informed that the definition of day operative in this matter does not include Saturdays or Holidays (Sundays are holidays), there is more time for filing than was originally estimated.
As I replay the video clip I am forced to notice several loose threads in Mayor McKay’s arguments. First, all of the climate change information which has come to me from experts point to a much drier climate here on Vancouver Island, rather than a wetter one. Second, I note that our local MLA has pulled some of the teeth in the alarm which he apparently gave to Mayor McKay. And finally, Section 287 of the Local Government Act which deals with Immunity for individual municipal public officers appears to nullify any concerns regarding the individual liability of Councillors for decisions made in the absence of “dishonesty, gross negligence or malicious or wilful misconduct.”
Rather than being concerned for his personal assets, the Mayor should concern himself with facts before seeming to try to terrorize any Councillors who may be susceptible.
Luck to any who may wish to pursue this matter further. In the meantime I will keep all posted on my issue which is before the Office of the Information and Privacy Commissioner of BC regarding the redaction of a segment of a meeting of Council dealing with the Leadercast affair. I should be receiving the response from the Lawyer hired by the City to represent them in this matter in the next couple of weeks.