A West Hamilton resident has filed an application accusing HWDSB Trustee Judish Bishop of violating the Municipal Conflict of Interest Act over her votes to close Prince Philip School while keeping GR Allan and Dalewood open.
By Ryan McGreal
Published February 25, 2013
A West Hamilton resident has filed an application with the Ontario Superior Court of Justice to have his school board Trustee removed from office under the terms of the Municipal Conflict of Interest Act.
Mark Coakley alleges that Hamilton-Wentworth District School Board (HWDSB) trustee Judish Bishop contravened the Act by failing to disclose a conflict of interest when voting to close Prince Philip School while keeping GR Allan and Dalewood Schools open.
According to Coakley's argument, when Bishop voted last April to sell Prince Philip and use the money to renovate the other two schools, she should have disclosed that she lives close to the other schools and stands to benefit financially from their remaining open.
The argument is that property values are higher in neighbourhoods with local schools, and the closure of Prince Philip will reduce property values in West Hamilton while boosting property values - including Bishop's home - around the refurbished Westdale schools that remain open.
Section 5(1) of the Act reads:
5. (1) Where a member, either on his or her own behalf or while acting for, by, with or through another, has any pecuniary interest, direct or indirect, in any matter and is present at a meeting of the council or local board at which the matter is the subject of consideration, the member,
(a) shall, prior to any consideration of the matter at the meeting, disclose the interest and the general nature thereof;
(b) shall not take part in the discussion of, or vote on any question in respect of the matter; and
(c) shall not attempt in any way whether before, during or after the meeting to influence the voting on any such question.
In a news release issued on Friday, Coakley is quoted saying, "By voting to shut Prince Philip against the unanimous recommendations of the public committee, instead of a school in her own neighbourhood, and by voting to spend the proceeds of that tragedy in her own immediate neighbourhood, Ms. Bishop did herself a financial favour. That is unethical and illegal."
The Act is enforced through applications from private citizens, not police or prosecutors, and Coakley's allegation has yet to be proven in court.
If a judge determines that a member of a council or board has violated of the Act has occurred, the judge has the discretion to remove the member from office, disqualify the member from running for office for up to seven years, and demand that the member pay restitution to the party who has suffered a financial loss.
The decision to close Prince Philip was highly controversial. It emerged during the Accommodation Review Committee (ARC) process that the Board had decided to stop spending money on maintenance for Prince Philip on the basis of faulty capital funding methodology that deemed Prince Philip "prohibitive to repair".
That faulty assessment was what triggered the accommodation review in the first place, but the Board refused to reconsider its policy even after admitting it was an error, despite the recommendation of the committee to keep all three schools open.
Bishop was sharply criticized for her role in defending the Board's actions and decisions around the Prince Philip closure. We Need Three, a community group that organized to try and keep Prince Philip open, accused Bishop of engaging in "an effort to shape public opinion to suit the Board's ends" instead of advocating the community's wishes.
In an email response to RTH, Burley explained why his client believes Bishop had a pecuniary interest in the school closure.
Proximity to schools in particular is a significant driver of property values. Trustees framed this vote as one of the schools having to be closed. Once it comes to that, she was facing a choice that has a huge impact on property value. These are two neighborhoods divided by what is essentially an expressway... [sic] There is no sense in which [Prince Philip] is proximate to Westdale (or vice versa).
Burley argued that there is legal precedent for this conflict of interest argument. "Considerable precedent, yes. Jafine v. Mortson is a good example of the many cases on point. ... The issue is the significant property value impact. This gives a trustee a pecuniary interest in the outcome and they must declare that interest and not speak or vote."
In Jafine v. Mortson (1999), a resident of the Town of East Gwillimbury in York Region brought an application against the Mayor of that town, who owned a 100 acre farm close to the proposed route of a Hwy 404 extension. The Mayor participated in two municipal votes supporting the highway extension, which could potentially boost the value of his property, without disclosing a conflict of interest.
The Judge's ruling quoted an earlier ruling in the case of Halton Hills (Town) v. Equity Waste Management of Canada (1995), which stated:
The Act is crystal-clear. It is harsh. It must be. It controls the actions of council members. They are the repositories of the citizens' highest trust. They must at once be strong in their debate to put forward their electorates' concerns; they must always have an ear to the dissent in their voters. They must not only be unshirkingly honest they must be seen to be so-by those who voted for them, and those who voted against them. Their role, though noble in its calling, is demanding in its execution. It is onerous in the extreme.
The Judge in that case ruled that the Mayor did violate Section 5(1) of the Act but that the violation was unintentional, concluding: "that contravention was committed by an error in judgment and accordingly, no statutory consequence or sanction need be imposed."
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