Mayor Rob Ford left the court by mid-day yesterday, but the ghosts of his two predecessors – Mel Lastman and David Miller – made their presence felt as the hearing shifted from cross examination to legal argument.
As I mentioned in yesterday’s column, the irony hanging over this proceeding is that Ford ended up getting bitten by accountability policies promoted by Miller. So it’s worth tracing this arc from the beginning of the rainbow:
In 2001, city council discovered it had agreed to a smelly computer leasing deal with a hidden escalator clause that saw the price almost double. As the political flames spread and pressure to cancel the lease mounted, Lastman hired one Alan Lenczner, Ford’s lawyer, to negotiate a settlement with MFP, the leasing company.
Lenczner and MFP’s lawyers hashed out a compromise, but several councillors, led by Miller — a lawyer who knew his way around a commercial contract — pressed hard for an investigation instead. Lenczner recommended against such a move, but council ignored him and established the Bellamy inquiry.
While no one went to jail, the inquiry’s findings destroyed, once and for all, the political career of Tom Jakobek (who secretly enabled the deal) as well as several Lastman era-bureaucrats. It led to far-reaching changes in the city’s procurement processes. Bellamy’s report also laid the foundation for the ethics and governance reforms enacted after Miller took office: the lobbyist registry, the ombud, the establishment of an independent auditor-general, the passage of the City of Toronto Act, (CoTA), and the creation of a council code of conduct, as specified by that piece of legislation.
So it was a bit strange, yesterday, to tune in to Lenczner’s highly legalistic arguments about all those Miller-era reforms and their application to the tribulations facing his client.
His case, in a nutshell, is that CoTA never gave council the authority to order one of its members to reimburse funds as a penalty for violating the code of conduct. CoTA, he told Justice Charles Hackland, is very precise: councillors who violate the code get “either” a reprimand or a fine of up to 90 days pay. Nothing more.
In other words, when, in August 2010, council (at Miller’s last meeting as mayor) ordered Ford to repay $3,150 in donations from lobbyists, as per the recommendations of integrity commissioner Janet Leiper, it was acting “ultra vires” – i.e., exceeding its authority. “The city had no power to do what it was doing,” he said. Ergo, everything that followed – Leiper’s repeated letters to Ford requesting he reimburse the funds, and then the report that came to council last February, when Ford spoke and voted – is rendered moot.
What’s more, Lenczner argued, everyone who is accused of something has a long-standing and well-established right to respond. So even if Leiper’s report was properly before council last February, Ford had an inalienable right to defend himself, by speaking to the motion.
The other key piece of Lenczner’s case is that council’s code of conduct and the municipal conflict of interest act should have nothing to do with one another. The code exists because of CoTA, while the MCIA is something else altogether. Therefore, it makes little sense, procedurally, for someone to be hauled up on an alleged code of conduct violation if the actual transgression involves a separate piece of legislation with its own procedures and penalties.
In a razor sharp contrast to his client’s foggy-headness, Lenczner’s arguments are deeply nuanced, technically complex and even persuasive – that is, until you pause to consider that Ford on Wednesday pre-emptively deflated his lawyer’s tires. He admitted, under oath, that he would have declared a conflict had someone told him to, thus making a mockery of Lenczner’s claim that Ford followed a consistent, albeit somewhat muddle-headed, principle for declaring conflicts.
And, as Clayton Ruby’s team pointed out, Ford had the right to challenge the legality of council’s August, 2010, decision to make him reimburse the funds. The code of conduct plainly specifies that members of council can apply for a judicial review. But Ford never availed himself. The question, is why not?
The seductive quality to Lenczner’s layered arguments is that they draw the viewer in closer and closer and closer until (as perhaps he intends) you lose sight of the big picture – like standing very close to a pointillist painting.
The big picture, of course, is the historical and legislative back-story to what’s transpired over the past two days. And we should all know it: a procurement scandal, borne of a hastily amalgamated city, created a tremendous public appetite for wide-ranging administrative and political reform. Having ridden that wave into office, Miller pushed for CoTA as the logical next step. He believed the City of Toronto needed to be treated as a mature, equal partner in our constitutional democracy – a government with real rights, not just a “creature” of the province.
With rights, as your parents loved to remind you, come responsibilities, and Council’s responsibilities were enshrined in the member’s code of conduct. It should not be read minutely, as Lenczner has done, but rather at the highest possible level: it is a foundational document laying out the principles that Toronto’s elected officials ought to embody. And, needless to add, David Miller meant for it to be read.