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Soliciting donations, promising stuff to donors – the Supreme Court asked to figure out if that’s conflict

April 2nd, 2015 · 6 Comments

I realize the keeners in class already know that the Supreme Court heard the case this week involving five Vancouver residents — including one of Vision Vancouver’s most persistent critics, Randy Helten — versus Mayor Gregor Robertson and Councillor Geoff Meggs. The residents are trying to get them thrown out of office for having, they claim, put themselves in a conflict of interest by making promises to a city union about jobs in exchange for campaign donations.

The stories I wrote in the two days in court are here and here. But court cases always inspire me to muse aloud, because there are so many things that happen that can’t be captured in just one or two news stories.

So two, count ’em, two lawyers from Fasken Martineau argued on behalf of residents (who have repeatedly declined to say who is helping pay their legal bills) that Meggs had gone beyond the usual kind of campaign promise when he went to CUPE 1004’s general meeting last October and talked about Vision’s policy on contracting out.

David Wotherspoon made an argument I didn’t expect, saying that it was okay for Meggs to have said that the mayor “has re-committed to not extend any contracting out.” I thought that was the statement that the NPA claimed was proof that the mayor and councillor were promising future jobs for the union in exchange for campaign contributions.

But Wotherspoon said that was the kind of general policy statement made during campaign pitches that was okay.

Instead, he argued that the next thing Meggs said was the problem: that whenever the city brought in “new processes,” it would be CUPE 1004 members who would be delivering the services.

It was a little hard to follow the angels-head-of-pin argument on this one (as it was for the other side at moments), but as I think back on it, I guess he was saying that it’s okay to promise no additional contracting out (the city contracts out quite a lot of services, on the premise that it’s good to take advantage of both ways of getting work done) but it wasn’t okay to promise that the union would get any new jobs.

Justice Elliott Myers was a bit perplexed by that, asking several times, essentially, “But since, under labout law, this union is certified to get the work that isn’t contracted out, doesn’t ‘no contracting out’ mean they get the jobs, so what’s the difference?” (My approximate wording.)

Another part of the case that surprised me was that the Vision lawyer, fearsome Bryan Baynham who ironically sued the city a couple of years ago on behalf of Olympic Village condo owners, didn’t really go at all into the argument that political appeals inevitably mean promising something to people who then may give you money.

Again, Justice Myers made that point, asking if this wasn’t all about regular political life. If someone went to a neighbourhood fundraiser near a bike lane and promised to get rid of it or keep it, some of the people who might be inspired to give money might be motivated by the impact that action would have on their property values. So the candidate is getting a direct benefit (their money), in exchange for a promise that s/he will vote on something that is advantageous to the donor.

I would have loved to have heard that argument thrashed out, as one of the things that the regular public has the hardest time with in current civic politics is that the people who win seats on council have accepted extremely large amounts of money from the development industry and then those councillors go on to vote on projects from those donors.

When I talk about politics in my journalism classes, the fact that that is not considered a conflict of interest is one of the more difficult concepts for my students to get their heads around. (I’d guess that, for them, big money is so foreign that it seems entirely plausible that someone’s $10,000 donation to a $2-million campaign is enough to persuade a bunch of councillors to act unethically and/or break the law.)

But that topic went mostly untouched. Instead, Baynham kept his arguments very narrow and, at times, nitpicky.

The lawsuit was inappropriate and improper, he said, also throwing out a kind of “f’ing NPA hacks” comment that will no doubt endear Vision’s enemies to them even more, by calling the residents who filed it a bunch of “do-gooders” who think it’s their right to overturn election results.

He suggested that the tape was problematic because it was only partial (nine minutes out of two-hour meeting) and that it would never have been admitted as evidence if Meggs hadn’t agreed to certify that the words on it were accurate.

He also argued that Meggs only said that the union would have the rights to work that came out of “new processes” — which could mean a shift from manual garbage collection to mechanized, for example — and that fell within the union’s jursidiction. That isn’t promising new jobs or jobs taken away from other unions, I guess was the point.

He made the case that the union meeting where Meggs spoke was not some secret cabal, but a general membership meeting where several candidates from several parties spoke. He noted that an unidentified union spokesman on the tape clearly talks about giving the money to Vision even before there is any question of pressing the party on exactly what its position is going to be on union issues.

NOTE: In my first-day story, I said that if the suit were successful, it would mean control of council would pass to the NPA. One could argue that that would be pretty close to true, since Kirk LaPointe would become mayor, with everything that entails, and Ian Robertson would replace Geoff Meggs and the Green Party has tended to vote far more often with the NPA than Vision on split votes. But in fact, it would be a 5-5-1 split, so Vision would lose control and no one would be definitively in control.







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