Mayor Rob Ford, according to The Globe and Mail, racked up over $116,000 in legal fees fighting the conflict of interest allegation, and it appears that he is determined to make Paul Magder, the complainant, pick up this bracing tab.
Should Ford be expected to personally cover the cost of defending himself in a legal battle in which he ultimately prevailed?
No. A panel of three judges scrutinized the lower court’s original decision, heard the arguments from two nuclear-powered lawyers, and ultimately ruled that the mayor did not breach the municipal conflict laws last February. I can’t think of any reason why it would be fair that he get stuck with those legal bills.
True, he has not been held accountable for the original code of conduct breach (asking developers and lobbyists to contribute to his family’s football foundation), which was a much more serious abdication of his professional duties than voting on a motion to erase the $3,150 fine imposed by integrity commissioner Janet Leiper. But a hefty legal bill for the conflict case can’t be seen — and shouldn’t be seen — as a de facto penalty. He won, and so he shouldn’t have to pay.
Ford, however, clearly intends to pursue Magder for those costs as an ice-water warning to others who might be considering this kind of action against him. And that raises the question of whether Magder should shoulder this financial hit.
While Magder assumed a risk in pursuing this case — just as Adam Chaleff-Freudenthaler and Max Reed could be facing equally steep penalties if council’s compliance audit committee decides not to press charges against him this afternoon — it seems to me that the City should pick up part of the cost of Ford’s legal bills.
After all, the conflict case arose as a result of Leiper’s original investigation into the football foundation donations. As integrity commissioner, she is acting on behalf of council (and therefore Torontonians), and uses the financial resources of the City of Toronto to carry out her mandate. If she hadn’t pursued the original complaint and the subsequent follow up, there would have been no conflict case.
But I don’t think the City should cover the entire bill. Rather, the City and Magder should split the cost.
Ford is well versed in the politics of pay-back, and evidently intends to dispense some in this case. So from where I sit, anything that dials down the retributive fever that has gripped council since the day he took office is a good thing.
At the same time, one of the shortcomings of the whole complaint edifice – the code of conduct, the compliance audit provisions of the Municipal Elections Act, and the Conflict of Interest penalties – is that it has the capacity to infect our political system with litigious fervour.
I’m not saying this category of legislation is unnecessary. But these rules are vulnerable to misuse, and I think it’s become increasingly clear that the pursuit of the conflict allegation against Ford was ill-considered and over-sold from the get-go.
For that reason, I’d say there’s an argument for expecting Magder and his supporters to shoulder part of the load. I’m guessing that raising $58,000 from the mayor’s many political opponents won’t prove too difficult.
Splitting the difference — which requires council to rescind a by-law passed early in Ford’s term banning the city from picking up councillor’s legal bills — would send several signals: first, that vengeance in either direction is not a healthy way to conduct politics; second, that the moral hazard associated with vexatious litigation is real; third, that council and the city’s taxpayers properly bear some of the financial responsibility for this mess; fourth, that the threat of legal fees shouldn’t cast a chill over the system designed to handle complaints against politicians.
To get there, two-thirds of council would have to back a motion to re-open the legal fees policy. It is an open question whether the mayor could be persuaded, much less compelled, to stand down from his determination to force Magder to pay. But if council can back a compromise crafted to de-escalate of the brinksmanship that continues to pollute the city’s politics, it should take every opportunity.
As your mother used to say, two wrongs don’t make a right.
photo by Andreas Garcia