Yahoo Finance Council to decide whether to boot Coun. Harder from planning committee
Ottawa's integrity commissioner was wrong to recommend that Coun. Jan Harder be removed as chair of the city's powerful planning committee, according to an outside legal opinion sought by Harder's lawyer and sent to council members in advance of what is expected to be a tumultuous meeting Wednesday.
Council is set to debate integrity commissioner Robert Marleau's mammoth 101-page report into Harder's relationship with The Stirling Group. The consultancy is led by registered lobbyist Jack Stirling — whom Harder considers a friend and mentor, and from whom she regularly sought advice — and includes his daughter Alison Clarke.
The report found, among other things, that Stirling's firm was on contract to Harder for years while he represented private planning clients at city hall and even personally represented them at the committee Harder chaired.
Marleau, who has been integrity commissioner since 2013, is recommending that Harder lose her seat on planning committee over the perceived conflict of interest, be docked 15 days' pay, reimburse her legal fees and that she declare work performed by The Stirling Group for free as a "benefit" under the city's gift registry.
It will be up to council whether to approve the integrity commissioner's recommendations, as it has done in the past for reports on Coun. George Darouze and Coun. Rick Chiarelli, who were also found to have contravened the code of conduct.
A number of activist groups are planning a rally Wednesday morning calling on council to accept the integrity commissioner's findings.
Harder's lawyer gets 2nd opinion
But Harder's legal representative — well-known Ottawa municipal lawyer Michael Polowin — sought a legal opinion from Toronto-based lawyer John Mascarin, who is also an established municipal and planning lawyer.
Mascarin, a partner with Aird & Berlis, has acted as integrity commissioner for many smaller municipalities that don't have a full-time commissioner and has overseen 80 integrity investigations.
Asked by Polowin to review the huge report, Mascarin disagreed with the some of the findings of Ottawa's integrity commissioner. In particular, Mascarin didn't find that Harder's "apparent non-pecuniary conflict of interest" was serious enough to have contravened Sec. 4 of the council code of conduct, which calls on council members to act with transparency and to "avoid conflicts of interest, both real and apparent."
Marscarin's 15-page opinion centred largely on Alison Clarke's work for Harder, which was mostly preparing briefing notes on applications headed to planning committee. However, Marleau's report also took into consideration Harder's relationship with Clarke's father, Jack Stirling, and came to the conclusion that the councillor's connection to The Stirling Group had "tainted" the city's planning process.
The Toronto lawyer's brief pointed out that in instances where other integrity commissioners have recommended a member of council be removed as a committee chair have been connected to harassment of municipal staff. Hence, the removal of the councillor was a "remedial measure" to keep people safe. Mascarin argues that removing Harder from her role is "simply not reasonable and, therefore, should not be imposed by Council."
In 2013, council unanimously approved the rules — and penalties — for the code of conduct, which allow the integrity commissioner to recommend removal of a councillor from committees, from their role as committee chair or "any of the sanctions above or other remedial action at his or her discretion."
Free work not a 'benefit,' says lawyer
Marleau found that Harder had received free services from The Stirling Group for four months during which there was no signed contract in place between the firm and the councillor's office. The report believed this work, worth $12,000, was a benefit for Harder that she must disclose in the city's registry for gifts, benefits and hospitality.
The integrity commissioner wrote that providing free services to an elected official "could create an expectation of favourable treatment in the future, or be perceived as creating some influence."
Again, Mascarin's disagrees with Marleau's interpretation, arguing Marleau has applied the rules "only textually and narrowly" and that the services provided "were not for the advancement of any particular interest or to gain an ulterior advantage", but only with the expectation the relationship between Harder and The Stirling Group would continue.
It is against the rules in Ottawa for a councillor to accept a gift from a registered lobbyist.
Council begins at 10 a.m. on Wednesday.
