No conflict of interest violations found during integrity commissioner investigation on O’Leary

April 17, 2019 Off By The Wall of Law

Owen Sound’s integrity commissioner has cleared Deputy-mayor Brian O’Leary of all conflict of interest allegations it investigated in relation to his connection to Mudtown Station.

Principles Integrity presented its findings, contained in a 13-page report, to council Monday.

“I really appreciate everything the integrity commissioners did. They went through a lot of work to get to this. But, what they found out was what I already knew,” O’Leary said in an interview. “That’s my only comment.”

The investigation by Principles Integrity took about 30 hours and will cost the city about $6,000.

While O’Leary didn’t comment on the findings during the meeting, several councillors did, with Coun. Travis Dodd saying he wanted to apologize to O’Leary, on behalf of Owen Sound residents, for the “hardships these accusations have placed” on the deputy-mayor and his family. He said the investigation took a financial and personal toll on O’Leary.

“In this particular case, it was easy after the fact to take a series of unconnected events to create your own story. And, as this report has identified, the story that was created was just that, a story,” he said.

Coun. John Tamming called the allegations “fairly trivial by any measure” and questioned why they warranted a full investigation instead of an informal resolution.

Janice Atwood-Petkovski of Principles Integrity said the complaints, on their face, contained questions that warranted a look.

“There was no willingness, whatsoever, to find an informal resolution in this matter. We therefore pursued the investigation. In our view, this certainly was not a matter that was easily categorized as trivial or, as litigation lawyers like to talk about, frivolous and vexatious,” she said.

The conflict of interest complaint, filed Sept. 20, 2018, related to several concerns about O’Leary’s participation in matters before council respecting Mudtown Station, a restaurant and brewery that is operated at the city-owned former Canadian Pacific Railway station.

Council approved in April 2017 a staff-negotiated, 15-year agreement with Mudtown Station Inc. to lease the building, which Owen Sound purchased in 2010.

The agreement stated, in part, that Mudtown Station would spend $735,000 on the property, including $400,000 on brewing and restaurant equipment. The city agreed to spend $615,085 on interior and parking lot upgrades and would recoup all but $161,000 of that investment through 20 years of Mudtown’s rental payments.

O’Leary purchased shares in Mudtown Station in August 2018.

The complaint to the integrity commissioner alleged O’Leary, who was a councillor at the time, had a conflict of interest when, as a prospective shareholder of the business, he participated in council’s vote in April 2017 on the Mudtown lease, the report says.

The complainant alleged O’Leary had already formed the intent to become a shareholder of Mudtown Station when that vote took place, it says.

The commissioner found there is “no basis to conclude” O’Leary had a conflict of interest in dealing with the lease.

“If the councillor had been a shareholder in Mudtown Station Inc. at the time of the report, there is no doubt he would have had a conflict of interest under the MCIA (Municipal Conflict of Interest Act),” the report says.

However, “we find that the councillor did not have a conflict of interest when council considered the lease in April 2017 as he did not acquire shares in Mudtown Station until August 2018, some 16 months later.”

The complaint also alleged O’Leary, while a Mudtown Station shareholder, had a conflict of interest as a result of decisions by town staff to promote the business in its Corkscrew City tours promotion, on a shared billboard advertisement and in Escape to Grey Bruce magazine.

The integrity commissioner found no conflict of interest occurred since those decisions did not come to council.

The complaint alleged O’Leary also had a conflict when, as a shareholder of Mudtown Station, he moved a motion on Sept. 10, 2018, to direct staff to investigate a fifth-lane design for the 10th Street bridge that would cause traffic to pass in front of Mudtown Station.

The integrity commissioner found Mudtown Station did not have a pecuniary interest in that matter, so O’Leary, as a shareholder, could not have had an indirect interest.

“Even if we were to find that traffic rerouting were to cause additional vehicles to pass by Mudtown Station, we are unable to find that Mudtown Station thereby has any particular pecuniary interest in the bridge reconstruction matter before council aside from an interest in common with all of the businesses in the downtown and harbour area which will ultimately benefit from an uplift in tourism generally,” the report says.

The commissioner recommended council receive its report for information and post it to the city’s website.

The report urges council to revise its code of conduct to include a conflict of interest provision, but says even if it contained one now, the commissioner would not have found O’Leary to have violated such a provision based on the allegations investigated.

Last fall, ahead of the municipal election, concerns and allegations were raised in the community and posted to social media related to the city’s investment in the CP station, its lease agreement with Mudtown Station and the links O’Leary had to the business.

The concerns prompted city manager Wayne Ritchie to hold a press conference Oct. 10 during which he said he believed all conflict of interest guidelines had been followed and defended the city’s investment.

Tamming, a lawyer, questioned at Monday’s meeting how and why the complaints passed “triage” to warrant a full investigation. He said he was able to determine after an 18-minute review that the complaints were without merit.

“I am very disappointed that this was not subject to what I understand is available to the commissioner, which is more of an informal complaint procedure,” he said.

Atwood-Petkovski said an informal resolution is only an option when both the complainant and respondent are receptive to pursuing one.

 

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source https://www.owensoundsuntimes.com/news/local-news/no-conflict-of-interest-violations-found-during-integrity-commissioner-investigation-on-oleary