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Posted December 13, 2007
Main Page: The O'Brien/Kilrea/Baird scandal Councillors must act to safeguard the office of Mayor and the integrity of the work of council Ottawa City Councillors misguided by city's lawyer to keep silent. Email to City Council from Ottawa resident Marjorie Robertson - plus clarification Update added at bottom. From: Marjorie Robertson To: Bob.Monette@ottawa.ca ; Rainer.Bloess@ottawa.ca ; Jan.Harder@ottawa.ca ; Marianne.Wilkinson@ottawa.ca ; Eli.El-Chantiry@ottawa.ca ; Shad.Qadri@ottawa.ca ; Alex.Cullen@ottawa.ca ; Rick.Chiarelli@ottawa.ca ; Gord.Hunter@ottawa.ca ; Diane.Deans@ottawa.ca ; Michel.Bellemare@ottawa.ca ; Jacques.Legendre@ottawa.ca ; Diane.Holmes@ottawa.ca ; Christine.Leadman@ottawa.ca ; Maria.Mcrae@ottawa.ca ; Clive.Doucet@ottawa.ca ; Peter.Hume@ottawa.ca ; Rob.Jellett@ottawa.ca ; Doug.Thompson@ottawa.ca ; Glenn.Brooks@ottawa.ca ; Steve.Desroches@ottawa.ca ; Peggy.Feltmate@ottawa.ca Cc: Larry.OBrien@ottawa.ca ; Stephane.Emard-Chabot@uOttawa.ca ; Rick.OConnor@ottawa.ca Sent: Wednesday, December 12, 2007 11:11 PM Subject: Councillors must act to safeguard the office of Mayor and the integrity of the work of council. Dear Ottawa City Councillors, The case facing the current mayor of the city of Ottawa is unprecedented, the charges extremely serious and the matter particularly germane to the work of City Council since it raises concerns and questions about the very election of the incumbent. · OPP Supt. Dave Truax said the case is the first he has heard involving this type of charge against a sitting mayor. "Not in my 21 years experience do I recall an incident such as this," he said. · University of Ottawa law expert Stéphane Émard-Chabot said he also believes this case is the first of its kind. "I have not been able to find a recent case in the last half-decade, even the last half-century or century that would have a municipal official be charged in connection to their elections to this degree," he said… · Ryerson University politics professor Myer Siemiatycki, who specializes in urban issues, said "This is a very rare occurrence." · City Solicitor Rick O'Connor emphasized at the mayor’s Monday night meeting that "these are very serious charges." There are two distinct issues: 1. The Criminal Case in which two Criminal Code charges have been laid against the individual Larry O'Brien who is the current incumbent as mayor of Ottawa. As for all citizens of Canada, the assumption of innocence of Mr. O'Brien must be vigorously preserved until the legal process concludes otherwise. THIS ISSUE, HOWEVER, WAS NOT THE SUBJECT OR PURPOSE OF THE MAYOR'S MEETING 2. The impact on the Office of Mayor of Ottawa of the unprecedented situation of having a sitting mayor charged under two sections of the Criminal Code, the impact on the ongoing work of council if the mayor were to continue in the role of mayor as though nothing had changed . THIS WAS THE SUBJECT AND PURPOSE OF THE MAYOR’S MEETING. Discussion might also have included what if any of the mayor’s duties should be assigned to others and how to determine who would temporarily take on such tasks. A meeting was called by Mr. O’Brien and held Monday December 10 to deal specifically with the second issue—the advisability of his staying in office while his criminal proceedings are in process. At the outset of his meeting Mr. O’Brien called upon the City Solicitor who spoke solely to the first issue. He correctly emphasized that City Council was not a regulatory nor disciplinary body nor an employer and cautioned against making any comments individually or collectively about the criminal case in progress. However, he failed to address the second issue thus inadvertently conflating the two issues. In this way councillors were misguided to be SILENT about the second issue--a matter squarely within their mandate and concerning that which they have an obligation to address on behalf of their electorate. This matter should not be dispatched by a popularity contest or media show. There were further gross anomalies in Mr. O’Brien’s meeting: Given the purpose of the meeting, Mr. O’Brien should have turned the chair over to the deputy mayor or another member of council in order that the discussions of council could be free of psychological pressure. The City Solicitor failed to provide advice related to the purpose of the meeting and thus the Criminal Case was conflated with the matter of its impact on the office of Mayor as well as its impact on ongoing council work. The chair, Mr. O’Brien, failed to recognize that there were two steps to the meeting—first the pronouncement of legal advice and second using what legal advice was appropriate to the matter to be discussed in the meeting. Time distinct from the speaker’s list for the meeting should have been provided for Councillors to query or seek clarification from the city solicitor. This might have prevented the conflation of issues which took over the proceedings and ultimately may have prevented the adjournment of the meeting based on that conflation. (Interestingly the Mayor was one of those voting for the speedy adjournment of the special meeting he had called.) There is a long tradition of elected officials stepping aside while courts determine criminal charges against them. This path is taken to preserve the integrity of the office which the individual holds, until the legal matter facing him or her is resolved. It relieves the institution of ongoing uncertainty whether or not an incumbent under the given charges should undertake particular duties-- and if not how the duties should be discharged. It ensures accountability to the electorate and prevents the slippery slope of ad hoc practices. It also acknowledges the reality that an incumbent preoccupied with charges cannot devote his full attention to the office. Many duties which a mayor performs should not be undertaken by a mayor charged with criminal offences directly related to his election to office. For instance it would be imprudent for Mr. O’Brien to represent the city in any dealings with the Federal Government such as the financing of light rail. While Mr. O’Brien may have no legal obligation to step aside until the criminal charges against him are decided by the court, he has a moral responsibility to remove the shadow of impropriety from the office of mayor. Ottawa City Councillors also have responsibilities to actively wrestle with the challenges to the mayoralty office and to the work of council that this unprecedented situation has posed. City councillors have shown compassion for Mr. O’Brien under the present circumstances and this is commendable but their compassion must stop short of avoiding their resposibilities and of putting the work of our city in jeopardy. NOTE: In this unprecedented situation, what resources are available to guide councillors ? Here is one possibility. On December 10, 2007 University of Ottawa Assistant Dean of Law Stéphane Émard-Chabot suggested on-air that had Mayor O'Brien been charged under the Municipal Act (which was an option for the police) and not the Criminal Code that he would have been obliged to step aside until the legal process had been concluded. While there is no provision under the Municipal Act for action to be taken when charges are laid in another jurisdiction such as under the Federal Criminal Code, expectations regarding continuing in office could be drawn from what would have been deemed appropriate had Mr. O’Brien been charged under Municipal laws I spoke to the city solicitor Rick O’Connor at the end of the Mayor's Meeting regarding this point. His answer seemed at odds with that of Stéphane Émard-Chabot whose office I have called for further clarification. This legal point deserves urgent verification. UPDATE: Dec.13 - 6:52 PM In the absence of clarification from Prof. Émard-Chabot, Marjorie Robertson has provided a link to the recorded version of his comments on YYC: It now appears that the professor said that, if found guilty, under municipal law, where he would likely simply be fined, or federal law, where the penalty would be more severe, O'Brien would in both cases have to step down. But if O'Brien were any other city employee, he would automatically be suspended with pay immediately upon being charged. Rather than advising councillors to keep their mouths shut as the city lawyer did, Émard-Chabot thinks councillors should be demanding O'Brien be suspended with pay until his case is settled. I typed the relevant comments as I listened, and these are his exact words to the best of my ability: This is a politician whose very mandate from the public is now being questioned and to me that's very serious. If found guilty under the municipal act there would be a lesser penalty, a fine, but the seat would still have to be vacated. Under federal law, he could receive 5 yrs for each count, concurrent. Question from interviewer: "What should happen next?" The reality though is that the notion of business as usual strikes me as odd. If this were a civil servant or a police officer who had been charged with criminal offences relating to his job, that person would be suspended immediately and council would be asking for that. And the person would be suspended with pay because again until they are proven guilty nothing wrong has been done, but at the same time acknowledging there is a cloud. The bar for the mayor should be way higher than it would be for the mayor's staff. His first court appearance is Jan. 9. [The whole process] could be as much as a year. If he misses more than 3 mos worth of city council meetings in a row he has to get city council permission to do this. It is a tough call for the politician in office, but who knows what the election results would have been ... [if Kilrea had run]. As his lawyer, I would say keep going, certainly; as a political advisor I should be a little more nuanced than that. We have to be cautious in recognizing that Larry O'Brien, as a citizen like all of us, enjoys this presumption of innocence. Mayor O'Brien did receive his position, though, through the trust of the public, through democratic vote. That vote is now in question. and that does raise different issues than it would for you or I walking down the street [...] He's not the average citizen. yayacanada |