Mayor Caul should have declared conflicts, commissioner reports

By Ken Kellar
Staff writer
kkellar@fortfrances.com

A report from the town of Fort Frances’ Integrity Commissioner has found Fort Frances mayor June Caul did have pecuniary interests in two council agenda items in 2021, though he will not be applying to a judge to determine if she violated the Municipal Conflict of Interest Act (MCIA).

The town’s integrity commissioner Paul S. Heayn presented a summary report of his findings at Monday night’s council meeting. The conflicts were raised by an anonymous letter and concerned events stemming from the council’s meetings on October 25, 2021, and November 8, 2021.

Heayn explained the October 25 incident arose from discussion surrounding a property owned by the town, in which a local club has a vested interest. Discussion of the report revealed the property in question was Sunny Cove Camp, and the club was the local chapter of the Kiwanis Club. As a member of the Kiwanis club, Heayn said that the mayor should have recused herself from those discussions, even if the club no longer has a financial investment in the Sunny Cove property.

“The town has an agreement with the service club, which in prior years sold the property to the town, and the town has an obligation to give the service club the right of first refusal,” Heayn said.

“Section 5.2 of the Municipal Act of the Municipal Conflict of Interest Act says that, for the purpose of the act, a member has an indirect pecuniary interest in any matter in which the council or local board, as the case may concerned if that member is a director or a member of the body that has a pecuniary interest. Mayor Caul was actually a director and of course a member of the service club, so because the service club had a pecuniary interest, mayor Caul had a direct indirect pecuniary interest.”

Turning then to the November 8 meeting of council, Heayn said that the mayor had a direct pecuniary interest in item 10.3, which was listed on that council’s agenda as an in-camera item with the line description “Litigation or potential litigation, including matters before administrative tribunals, affecting the municipality or local board.” As the mayor had a direct involvement with the legal matter being discussed, Heayn noted she should have again declared a conflict of interest and removed herself from the meeting.

“The fact that mayor Caul did not name the organization accusing the agency of withholding the information, she had a duty to respond to the demand letter regarding her allegations and provide a defence or clarification on those allegations, rather than letting council deal with the matter on her behalf,” he explained.

Further, Heayn wrote in his report, and quoted directly to council, a paragraph from a ruling by a superior court judge in regards to an incident from South Bruce, wherein the judge notes that contravening the MCIA does not require someone to be standing to gain money, or even acting with malicious intent.

“‘Those who are elected and as a result take part in the decision making processes of government should act and be seen to act in the public interest,'” Heayn quoted.

“It is not about acting dishonestly or for personal gain. It concerns transparency and the certainty that decisions are made by people who will not be influenced by any personal pecuniary interest in the matter at hand. It invokes the issue of whether we can be confident in the actions and decisions of those we elect to govern…’ That’s a very good paragraph for each councillor to remember.”

After laying out the reasoning for his findings, Caul was allowed to address the assembled council regarding the matters. She said that she believes that the Kiwanis club has no direct involvement in the Sunny Cove property, having divested itself of the property years ago when it was sold to the town of Fort Frances, and as such she should not have been found to be in conflict with the act.

“The only time anybody from the Kiwanis Club has been approached is just to ask stipulations and clarification for that they always perceived the land at sunny Cove be used for,” Caul said.

“If the land is leased or if the land is sold by the town, the Kiwanis Club does not receive anything from the town as a partial owner to that, and therefore I still firmly believe that I was not in a pecuniary interest in that regard. I’m really struggling with this Mr. Heayn, very much so. I don’t know whether I’m coming or going as far as this goes, and what the big problem is, is beyond me. Just because I’m just a member of the Kiwanis Club, I have not got any other interests other than what the town of Fort Frances has plans to do with this property because they’re the ones who own it now.”

Coun. Doug Judson spoke to the perceptions the public can carry when someone with a real or perceived conflict of interest takes part in an agenda item, particularly when that item is in-camera away from public view. He said the potentially severe legal ramifications of the MCIA, along with those public perceptions, should be a factor taken into consideration by council members moving forward.

“The two matters that are the subject of this report relate to closed meeting items, and so when we have members who are in real or perceived conflicts in those members in behind closed doors, it’s different than being in open session because I think it has a chill on the discussion we can have, and I think that that’s something as a council we have to be mindful of going forward,” Judson said.

“I think there’s been some commentary on our duties recently at council as well. At the last meeting, we had a discussion about our oath of office, the mayor raised this and again, emphasizing the importance of the Municipal Conflict of Interest Act, the obligation to declare direct and indirect pecuniary interest is in the oath of office. The ability to attend meetings during the day is not and that was something that came up at our at our last meeting. So I just want to be clear about what our obligations are.”

Coun. Wendy Brunetta also spoke to the matter, noting that as incoming council members they all received training regarding many different aspects of the job, but that any member is likely to run into similar situations simply owing to the fact that many sitting members of council have lives outside of those chambers.

“After I read Commissioner Heayn’s decision here, I started thinking about committees that I’m on personally and realized, ‘gee, there’s probably been a couple of times that things have come forward that I should have declared an indirect pecuniary interest and didn’t,’ so I’m thankful for the information and the refresher and I will certainly pay more attention to that in the future,” Brunetta said.

“Because we’re coming upon an election and another orientation process, I think it would be really important for administration to keep this in mind for the next orientation to you know, stress the indirect interest piece a little clearer.”

Coun. Behan leaned on his professional experience and suggested that the best course of action for councillors in the future might just be to be better safe than sorry.

“I think when I look at what’s on the agenda tonight, coming up with a new lease for a new group to take over Sunny Cove, I really don’t see a very strong connection with the Kiwanis Club in that respect,” Behan said.

“It’s to do with a new lease and new groups that are applying. Now, if the Kiwanis apply, I guess that’s different. I respect Mr. Heayn’s information and input into this. In the newspaper business, the old saying was ‘when in doubt, leave it out.’ I would say when in doubt, declare a conflict.”

Heayn noted that it is the discretion of the Integrity Commissioner to apply to a judge for determination of whether someone has contravened sections of the MCIA, which can lead to severe penalties, including removing a member from council and disqualifying that individual from being a member for up to seven years. Heayn said he would not be applying to the judge, as he wrote that he believes an elector, Solicitor or Council themselves “had six (6) weeks after the alleged violations to apply to a judge and had not,” according to his report, though Judson noted that the legislation states the period is six weeks from the moment of discovery.

The report was accepted and received by the council during their full meeting later that evening.