TABLE OF CONTENTS Dec 2012 - 0 comments

Mad Men and Conflicts of Interests in Hog Town

The plight of Mayor Ford is an example of the fundamental shift in attitudes about perceived conflict of interest and corruption.

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By: Jeffrey W. Lem and Odysseas Papadimitriou
2012-12-01

 Mad Men, the award-winning TV series set in the 1960s, has received critical acclaim for its riveting drama, wicked visual style and great acting all-around. However, what really draws viewers to the show is its historical poignancy -- the show seems to go out of its way to reflect on how much society has changed by focusing the viewer on the mores of the past that now seem like absurdities in retrospect. So, we’re shown scenes of pregnant mothers smoking (in hospital beds no less), unfettered sexual harassment in the work place, and toddlers sitting in the laps of their mothers, in cars with no seat belts, and so on. The sheer nonchalant nature of these scenes arrests its viewers, eliciting bewilderment in the young ‘uns, and nostalgia in those who are actually old enough to remember the 1960s!  

2012 has had its fair share of controversial, politicized, and precedent setting court decisions.  But no decision has shaken the political landscape as much as the recent decision of the Ontario Superior Court of Justice to remove Toronto Mayor Rob Ford from office. By the time this article goes to print, even in its online version, the mainstream press will have flogged the legal issues to death and the political issues even further into the ground. Already, it is front page news in Ontario and is apparently “trending worldwide” on Twitter as we put the finishing touches on this article.

The decision itself, Magder v. Ford, is relatively straightforward and the culmination of a long-running saga at Toronto’s City Hall over whether the Mayor was obliged to pay back $3,150 in donations made by lobbyists and corporate donors. On August 12, 2010, the City of Toronto Integrity Commissioner ruled that then-councillor Rob Ford inappropriately used the city logo, city resources, and his status as councillor to raise funds for a football charity. On August 25, 2010, City Council adopted the Integrity Commissioner’s recommendation that Mr. Ford personally be required to pay back $3,150. 

Over the next year, Mr. Ford repeatedly refused to pay back the funds, partly on principle and partly because some of the donors did not wish to receive reimbursement for their donations. On January 30, 2012, the Integrity Commissioner issued a report to City Council requesting that the now Mayor provide evidence of reimbursement by March 6, 2012. The matter was raised for discussion at the February 7, 2012 City Council meeting. As the dynamics of City Council had now shifted in Mayor Ford’s favour, City Council adopted a motion to rescind the August 25, 2010 decision and directed that no further action be taken on this matter. Mayor Ford voted on this matter.

Paul Magder, a private Toronto resident (and not the noted furrier), brought an application for a determination that Mayor Ford contravened the Municipal Conflict of Interest Act, not so much for having solicited the donations in the first place, but, rather, by speaking on and ultimately voting upon the February 7, 2012, motions. As part of that lawsuit, Mr. Magder requested Mayor Ford’s immediate removal from office.

Mr. Justice Charles Hackland of the Ontario Superior Court found that Mayor Ford was in fact in a monetary conflict of interest, even though the money did not go to benefit Ford directly. The Municipal Conflict of Interest Act barred him from speaking or voting in the City Council debate over his repayment of the sum. Mayor Ford’s actions amounted to an “unfortunate but arguably technical breach…characterized by ignorance of the law and a lack of diligence…amounting to wilful blindness” of the rules. Nevertheless, as the Act is unforgiving and ignores such nuances by imposing a mandatory penalty of removal, Justice Hackland was left with no alternative but to remove Mayor Ford from office.

So how does Mad Men relate to municipal politics and enforcement of political ethics legislation in Toronto? It is quite arguable that Mayor Ford has become the latest victim of a worldwide change in attitudes towards corruption and political conflicts of interest. There was a time, not so long ago, when what Mayor Ford did (whether soliciting charitable donations using his municipal letterhead and resources in the first place, or voting on a matter in which he had a pecuniary interest) could not possibly have attracted social disdain, let alone a lawsuit that would lead to an impeachment, whether or not there was legislation on the books to that effect. In a time not so long ago, conflicts of interests in municipal politics were considered almost de rigueur, and if not quite de rigueur, then at least commonplace and a tolerable way of doing business.  

There is not a single reader of Building who has not heard of some donation or gift, often to a totally legitimate charity or pet cause, that had to be made at the “recommendation” of a local bureaucrat or politician who just so happened to have some influence, direct or indirect, on a development permit, minor variance or other required staff approval. To be totally clear, we are not talking about “hardcore corruption” here. At its very worst, this sort of behaviour is “soft-core,” since the donations and works solicited from the public are often for noble and worthy causes in their own right, and there is rarely a direct causal link between a donation to the right cause and a favourable development outcome.

In particular, there was no suggestion that Mayor Ford was in any way peddling influence in exchange for a few bucks donated to a football charity, even if it was a charity with which he personally championed. In fact, it is almost absolutely certain that this was not the case. As Mr. Justice Charles Hackland stated in the case, Mayor Ford’s conduct involved “absolutely no issue of corruption or pecuniary gain.” However, the fact that this was so clearly not a “hard corruption” case underscores the point we are making -- society’s views about this sort of conduct have changed over the years, and this sort behaviour simply will not be tolerated anymore, even in a relatively “soft-core” and harmless iteration.

Although, technically, Mayor Ford was prosecuted for his role in speaking to and voting upon his own fate in council, what this case really shows us is that behaviour which has the appearance of impropriety (and, yes, soliciting donations using government letterhead, no matter how noble the cause, is improper, notwithstanding protestations from the political right to the contrary) will no longer be tolerated, even when it was otherwise relatively harmless (and, yes, the $3,150 in donations at issue were a pittance, notwithstanding protestations from the political left to the contrary). For better or worse (and some would say that political correctness has swung too far the other way, and that there are aspects of the Mad Men way of life that are worth returning to), in the modern world of municipal politics at least, conflicts of interest do matter, the appearance of integrity does matter, and legislation imposing codes of behaviour do have to be respected.

Nowhere will this shift in attitude play itself out more tangibly than in the development and construction industry. Hardcore corruption will still exist in this industry -- we are optimists for a more transparent playing field, but we are not naïve -- but cases like Magder v. Ford will make it more difficult for hardcore corruption to flourish by making even soft-core impropriety punishable by law. Regardless of your political leanings, this change in attitude is ultimately a good thing for the development and construction industry. Even if Don Draper were mayor today, he too would have to be aware of and abide by the Municipal Conflict of Interest Act!



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